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Illinois Bar Journal

A recent court order (http://bit.ly/2rkz8A6), which amends the court's January 22, 2016 mandatory e-filing order, requires circuits with existing e-filing programs to switch to the statewide eFileIL system by July 1, 2018. The original order had not set a specific date, but said that one would be announced in the future.

Another change wrought by the amendment is that all courts must make their case documents and information available to a new statewide remote access system known as re:SearchIL. However, this does not mean that attorneys and the public will have immediate access to the new system. The high court has stated that implementation and access will progress at a pace that it sets.

Initial access will only be provided to judges, clerks, and court officials. The amended order says that attorneys and the public will ultimately gain access -- re:SearchIL "is designed to serve as an online remote access system similar to Pacer in the federal courts."

Before that can happen, "a remote access policy needs to be fully vetted and approved by the supreme court," Madison County Chief Circuit Judge David Hylla says. The high court's e-Business Policy Advisory Board, of which Hylla is chair, is working to recommend a policy, he says. He expects that re:SearchIL will be "available to the bar and the public soon after all or nearly all courts are integrated with the central [Electronic Filing Manager.]"

There will be a predetermined document access fee (much like Pacer). The amended order says that the fee will be paid in full to the circuit court owning the case documents-so long as the court has migrated to eFileIL.

Corporate America has taken steps to create a more diverse workforce at all levels. Companies like Microsoft have executives who focus on developing and fostering a diverse environment. Women and people of color are increasingly seen in managerial and executive-level roles.

And yet the legal profession has lagged behind. Professor William Henderson of Indiana University's Maurer School of Law has looked at how to improve diversity in the profession and the benefits of doing so.

Henderson published the results of his research in a 2016 paper entitled "Solving the Legal Profession's Diversity Problem" (http://bit.ly/2rVJpm6). Henderson, who recently spoke at the Illinois Supreme Court Commission on Professionalism's The Future Is Now: Legal Services 2.017 conference in Chicago, suggests that the profession's lack of diversity is a system failure rather than a lack of moral resolve.

Henderson's research indicates that law firms have put a disproportionate emphasis on academic credentials. He cites research and his own experience with internal law firm studies for the proposition that "attendance at an elite law school is seldom a marker of future success and often a slight negative predictor."

A better indicator for success than which law school attorneys attend is whether they had access to mentoring and feedback at the beginning of their career, he says. Find out more in the July Illinois Bar Journal.

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]."

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.

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.

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.

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.


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

Attorneys filing civil cases before the Illinois Supreme Court and Appellate Courts will be required to do so electronically as of July 1, and the circuit courts across the state will follow on Jan. 1, 2018, pursuant to Illinois Supreme Court Order M.R. 18368 issued on Jan. 22, 2016. This comes 15 years after the court first launched an e-filing pilot program in September 2002.

"This is a crucial shift in policy and practice for the Illinois courts," says Mike Tardy, director of the Administrative Office of the Illinois Courts (AOIC). "It represents a fundamental cultural change in moving our system of justice into the use of digital technology. This will have access benefits, efficiency benefits, and ultimately, there will be cost savings."

The AOIC and Texas-based vendor Tyler Technologies, which has set up e-filing in part or all of 20 states, are working assiduously to ensure that the centralized electronic filing manager system, known as eFileIL, will be all-systems-go when the date arrives; in fact, it was already live in 59 out of the state's 102 counties by mid-April.

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."

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 Palmisano70 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.