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Practice News

As a lawyer doing asbestos litigation for the Metro East firm Simmons Hanley Conroy, Karoline Carstens of Alton has honed her deposition-taking skills to a sharp edge. In the latest issue of ISBA's YLDNews, she shares some of her expertise with lawyers who have little or no experience deposing witnesses.

For example, she underscores the importance of knowing the applicable procedural rules."[I]f your case is filed in Illinois state court, read through the Illinois Rules of Civil Procedure, especially Rules 201-224 on discovery and depositions," she writes.

Also, Carstens advises, "[b]e aware that many courts have local rules and standing orders that address the deposition process. It is very important to know these rules. I often bring a copy of the standing order that governs many of my cases to depositions in the event a dispute arises."

And that dispute might oblige you to reach out to the judge, she writes. "Once in a great while, a disagreement may require the immediate intervention of the judge assigned to your case. It is beneficial to know whether your judge is agreeable to being called during a deposition. If so, keep the phone number handy just in case." Read her article for tips about handling objections, how and why to prepare thoroughly, and more.

Q. Can I compensate a fact witness for testifying in a civil trial?

A. Under Rule 3.4(b) a lawyer cannot “offer an inducement to a witness that is prohibited by law.” However, Comment [3] to that Rule makes it clear that it is not improper to pay a witness the reasonable expenses incurred in providing evidence, including reimbursement for the reasonable charges for travel, hotels, meals, child care, or the reasonable value of time spent attending a deposition or hearing or consulting with the lawyer.

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

[DisclaimerThese questions are representative of calls received on the ISBA’s ethics hotline.  The information provided below is meant as an educational tool to highlight potentially applicable Illinois RPC or other ethics resources that might help the lawyer answer the question posed.  The information provided isn’t legal advice.  Because every situation is different, often complex, and the law is constantly evolving, you shouldn’t rely upon this general information without conducting your own research.]

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. In this episode he covers Maintenance in family law cases (Public Act 98-961), Condominium Property Act (Senate Bill 2664), Trusts and Trustees Act (Public Act 98- 946), UM/UIM insurance (Public Act 98-927) and Service of process (Public Act 98-966). More information on the bill is available below the video.

Asked and Answered

By John W. Olmstead, MBA, Ph.D, CMC

Q. I am the managing partner of a five attorney firm in Fort Worth, Texas. I am new to the managing partner role and am looking for a quick and dirty tool to examine our financial performance. Can you point me to a tool that I can use?

A new public act dramatically changes how spousal maintenance is determined for divorcing couples whose combined gross income is less than $250,000.

The law, P.A. 98-0961, which was crafted by the ISBA Family Law Section Council, creates a formula for calculating maintenance based on the gross income of the parties and the length of the marriage. Up till now, judges calculated maintenance without using a statutory formula similar to the one that applies to child support awards, instead relying on a list of factors that appear at sections 504 and 505 of the Illinois Marriage and Dissolution of Marriage Act. As a result, maintenance decisions vary widely, and lawyers have found it difficult to predict what a court will do when awarding maintenance.

The new formula will change that, once a court makes the threshold decision that maintenance is appropriate in a given case. Although judges aren’t required to use the formula, they must make a finding explaining why they did not.

Under the formula, a maintenance award should equal 30 percent of the payor’s gross income minus 20 percent of the payee’s gross income, not to exceed 40 percent of the parties’ combined gross income when added to the payee’s gross. Here's an illustration of how the math works.

Assume the soon-to-be-ex-husband grosses $50,000 a year, and his wife earns $30,000. Thirty percent of $50,000 is $15,000, and 20 percent of $30,000 is $6,000. Subtract $6,000 from $15,000, and voila – the husband owes the wife $9,000 a year in maintenance. Simple enough.

In the ISBA Family Law Section's August newsletter, section chair Kelli E. Gordon does a superb job of describing the status of HB 1452, the much-discussed overhaul of the Illinois Marriage and Dissolution of Marriage Act. "It makes many changes," Gordon writes, "some significant (like eliminating the terms 'joint' and 'sole' custody) and some insignificant (like eliminating 'grounds' other than irreconcilable differences)."

As Gordon notes, the bill is still a work in progress that will likely take center stage during the fall veto session. Here's her description of the bill's past and probable future.

"The bill passed the House of Representatives on April 10, 2014 with House Amendment 2 and was sent to the Senate the same day. Senate Amendment 1 completely deleted and replaced the underlying bill on May 8, 2014," she wrote. "The bill ended up in the Committee on Assignments at the end of the spring session.

Q.  Am I allowed to advertise that I am “specialized” in a certain area of law?

A.  Rule 7.4 allows lawyers to advertise that they do or do not practice in a particular field of law. However, the rule also states that the Supreme Court of Illinois does not recognize certifications of specialties in the practice of law. IRPC 7.4(c). For a full explanation, see Rule 7.4.

ISBA members can browse past ISBA Ethics Opinions, access our Ethics Hotline, and other resources on the ISBA Ethics Page.

[Disclaimer. These questions are representative of calls received on the ISBA’s ethics hotline. The information provided below is meant as an educational tool to highlight potentially applicable Illinois RPC or other ethics resources that might help the lawyer answer the question posed. The information provided isn’t legal advice.  Because every situation is different, often complex, and the law is constantly evolving, you shouldn’t rely upon this general information without conducting your own research.]

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. In this episode he covers Traffic offenses and appearance (Public Act 98-870), Witness fees in some juvenile cases (Public Act 98-826), Freedom from Drone Surveillance Act (Public Act 98-831) and Condominium Property Act (Public Act 98-735. More information on the bill is available below the video.

Traffic offenses and appearance. Public Act 98-870 (Noland, D-Elgin; D'Amico, D-Chicago) changes the procedures for all traffic violations that are petty offenses to include repeal of the requirement that bond be posted. If a person fails to appear for a court date, the court may continue the case for a minimum of 30 days and notify the person at their address of record with the secretary of state.

The Illinois Supreme Court Commission on Professionalism (2Civility.org) announced today the 2014 Law School Orientation program schedule for all nine Illinois law schools. Incoming students will be welcomed into the legal profession with early exposure to the foundations of the legal profession, including professionalism, ethics and civility.

"The Court believes it is important to impress upon entering law students that they are now entering a profession that requires high standards," said Supreme Court Chief Justice Rita B. Garman. "We appreciate the involvement of attorney volunteers who help introduce the students to the ideals of our profession. It is hoped that the law students will incorporate these ideals into their academic careers and into their law practices upon graduation and admission to the bar."

Justice Robert R. Thomas serves as the Illinois Supreme Court's liaison to the Commission on Professionalism and had recommended to his colleagues the creation of the Commission to encourage greater professionalism in the bench and bar.

"Professionalism is the touchstone of our legal community," said Justice Thomas. "It is essential to be introduced to the ideals of our profession early on for incoming law students. They can begin to incorporate and develop these ideals as students."

The idea behind professionalism programs during orientation grew out of a belief among justices of the Supreme Court that one of the most effective ways of improving professionalism among attorneys is to begin at the earliest stages with law students. The program has had tremendous success over the past few years and is a highlight of both the law school year and the judicial year.

Asked and Answered

By John W. Olmstead, MBA, Ph.D, CMC

Q. I am the owner of a five attorney personal plaintiff firm in Wheaton, Illinois. Our practice is in its 25th year of practice and we are 100 percent concentrated in personal injury. Over the years we have been very successful, but the last three years we have been struggling. Revenues and profits have been flat. It is getting harder to get good cases and harder to settle and move the cases that we have. We need to approach our business differently. I would appreciate your ideas and thoughts.