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Illinois Bar Journal

  • November 23, 2020 | Practice News
    Oral Arguments: More and Less Remote

    Perhaps no one has been more outspoken regarding the importance of oral arguments in appellate courts than Illinois Supreme Court Justice Karmeier, who has reiterated the importance of providing appellate counsel an opportunity to “isolate and clarify the core issues in a case and to direct the court’s attention to matters that may have been overlooked or misunderstood.” As chief justice, he categorized the “interactive nature” between counsel and the justices as being “invaluable” to the court’s decision-making process and emphasized the importance of the interaction between the justices themselves during oral argument. Justice Karmeier also lauded oral argument as a key component to “providing public visibility and institutional legitimacy to our system of judicial review.” All of these statements came to fruition in an amendment of Illinois Supreme Court Rule 352, known affectionately by some as “Thou shalt oral,” which into effect July 1, 2018, and has had a significant impact on appellate advocacy. In her November Illinois Bar Journal article, “Oral Arguments: More and Less Remote,” Amanda Hamilton discusses the steady increase in oral arguments in Illinois appellate courts and why Illinois appellate practitioners must be prepared to present and defend their positions on complex issues at oral argument with increasing frequency.

  • November 16, 2020 | Practice News
    Hindsight is 20/20

    The term “hindsight bias” is defined as “the tendency, after an event has occurred, to overestimate the extent to which the outcome could have been foreseen.” A new trend in Illinois is for litigants to attempt to introduce evidence of hindsight bias through opinion testimony by experts in human factors or psychology. These opinions have been commonly offered by defendants in negligence cases to argue that jurors should not judge their conduct with the benefit of hindsight information learned after a plaintiff’s injury; instead, they should consider only the information that a defendant possessed at the time of his alleged negligence. As Arlo Walsman notes in his November Illinois Bar Journal article, “Hindsight is 20/20,” the Illinois Appellate Court has not yet ruled on the admissibility of expert-opinion testimony regarding hindsight bias and trial courts have reached different conclusions on this issue. In his article, Walsman highlights the legal issues surrounding the use of expert-opinion testimony on hindsight bias and practical tips for lawyers to consider when confronted with such evidence.

  • November 9, 2020 | Practice News
    A Palpable Conflict

    In their November Illinois Bar Journal article, “A Palpable Conflict,” Anthony J. Longo and John M. Fitzgerald pit two ancient doctrines against each other: the law of the case vs. subject-matter jurisdiction. What happens, Longo and Fitzgerald ask, when subject-matter jurisdiction and the law-of-the-case doctrine clash? In other words, does the law-of-the-case doctrine really bar someone from relitigating the court’s subject-matter jurisdiction in a subsequent appeal? The authors, in their article, “A Palpable Conflict,” show that there is a split of authority on this issue. While the majority of reported Illinois decisions on this issue have held that the law-of-the-case doctrine indeed bars relitigating a court’s subject-matter jurisdiction, a minority of cases have found (or at least strongly suggest) that defects in subject-matter jurisdiction can indeed be raised at any time—including after the appellate court has already ruled that it does possess subject-matter jurisdiction.

  • November 2, 2020 | Practice News
    Home Is Where the Office Is

    In its lead November feature article, the Illinois Bar Journal profiles several attorneys who decided to ditch the office years ago or were forced to because of the COVID-19 pandemic. While some attorneys say working at home is a mixed bag, others have embraced their new home offices and vow never to commute again. The COVID-19 pandemic has forced millions of U.S. workers to perform their jobs at home. (At one point during the pandemic, more than 60 percent of the U.S. labor market was working remotely; by midsummer, the percentage had dipped to about 42 percent, which is still significantly higher than pre-COVID-19 levels). While working at home isn’t new, including for attorneys, the pandemic has nudged many more toward the work-at-home lifestyle.

  • October 26, 2020 | Practice News
    What’s That Smell?

    This year, legalized recreational cannabis was supposed to dominate the news in Illinois and elsewhere (other things happened). In their October Illinois Bar Journal article, “What’s That Smell?,” Emily L. Fitch and Brenda M. (Duke) Mathis revisit Illinois’ new cannabis-related laws and follow the legal issues sprouting from cannabis legalization. They conclude multiple issues remain to be clarified by legislative action and caselaw, including questions surrounding probable cause with the scent of cannabis alone and whether a free air sniff is sufficient when the dog has been trained to detect cannabis. Up to this point, Illinois courts have placed only limited restrictions on free air sniffs. However, it does appear that the reviewing courts are prepared to throw out a prosecutorial-minded approach to the free air sniff and write new caselaw in the face of cannabis legalization. Fitch and Mathis also summarize new cannabis laws and compare Illinois with other states revisiting probable-search caselaw in light of cannabis legalization.

  • October 19, 2020 | Practice News
    For the Record

    During the COVID-19 pandemic, some Illinois courts have been conducting hearings and small-claims trials via video conferencing. While public health concerns continue, this technological approach to court business has had its silver linings. Witnesses, for example, have been able to testify remotely, saving travel expense and time. Perhaps such remote court technology also will complement the increasing use of foundational affidavits for business records, since the other party will have ample opportunity to challenge foundational sources during discovery and trial. As Christopher DiPlacido writes in his October Illinois Bar Journal article, “For the Record,” the basic modern approach starts from the premise that all evidence is competent until the reverse is shown. Generally, DiPlacido shows, Illinois Supreme Court Rule 236 liberalizes the rules of evidence pertaining to regular business records by eliminating the need for the preparer’s testimony or proof of authorship.

  • October 12, 2020 | Practice News
    I Can’t Quite Put My Finger on It

    As with any new technology, the use of biometrics comes with complications. If it is suspected that the device has been used to commit a crime, law enforcement is authorized to apply for a warrant to search the device. If the device is protected by a biometric feature, the government will seek authorization to compel the owner to unlock the device. In his October Illinois Bar Journal article, “I Can’t Quite Put My Finger on It,” Thomas A. Drysdale asks whether a person can be compelled to provide a biometric feature to unlock a device and finds that, due to the constitutional protection against self-incrimination, courts have struggled to find an answer. Drysdale examines the constitutional implications of compelling biometric features, compares differing judicial opinions, and provides background information for the Illinois practitioner approaching the issue.

  • October 6, 2020 | Practice News
    Become an Illinois Bar Journal Author and Receive CLE Credit

    The Illinois State Bar Association is inviting members to submit articles for publication in the Illinois Bar Journal (IBJ), our award-winning monthly publication that is sent to 28,000 attorneys throughout the state.

    When you become an author for the IBJ, you not only establish yourself as an authoritative subject matter expert, but you can also claim CLE credit for your work.

  • October 5, 2020 | Practice News
    ISBA’s Seat at the Table

    Child custody laws, driving with cannabis in one’s system, probating wills and estates—state laws addressing these and many other matters are often crafted with feedback from the ISBA, whose members have a seat at the legislative table because of their ISBA section involvement and the Association’s legislative affairs program. It is often said that the Association’s dozens of sections (and its special committees and task forces) represent its beating heart. Most of the ISBA’s networking, continuing legal education, and legislative involvement take place through these specialized groups. The October Illinois Bar Journal devotes its cover story to the tactics and strategies of the ISBA’s rigorous, hands-on legislative affairs program in which ISBA members are given an opportunity to shape the bills that often end up on the governor’s desk.

  • September 28, 2020 | Practice News
    Public Records Shortcuts

    In “Public Records Shortcuts,” the title of Jesse Bowman’s Finding Illinois Law column in the September issue of the Illinois Bar Journal, Bowman, associate law librarian for technology initiatives and instruction at Northwestern Pritzker School of Law’s Pritzker Legal Research Center, summarizes two free internet tools that can be used to search more than 70,000 public databases on the internet. Bowman compares these two services (Search Systems and BRB Publications), demonstrates how they work, and lists their pros and cons. Similar, more powerful search tools are available for a price, Bowman notes. But why not take these free services for a test run and see what they can do?