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Practice News

Is a credit card company's agreement with a cardholder a written or an oral contract? That's an important question in collection cases, because the period available for suing on the debt is 10 years for written contracts but only five for oral agreements. "[O]ne might well think that a credit card agreement would qualify as a written contract because credit cards are generally issued pursuant to a written card member agreement," write Judge Daniel T. Gillespie and Kathilynne Grotelueschen in the latest Trial Briefs, newsletter of the ISBA Civil Practice Section. "In fact," they continue "for years the collective wisdom was that there was a 10-year statute of limitations on credit card debt...." But then along came the first district's ruling in Portfolio Acquisitions, LLC v. Feltman, where the court found otherwise. The Feltman majority ruled "that the monthly statements are not complete agreements and therefore do not qualify as written evidence of indebtedness under the statute," Gillespie and Grotelueschen write. Thus, no written contract and no 10 year statute of limitations. Interesting and important case, interesting and noteworthy article.
One of the many blessings of the Internet is the proliferation of legal-writing blogs. To quote Bryan Garner, the law is a literary profession, and I believe that writing is something I have to work on every day. Think about it; we churn out more copy than most journalists do. I’ll note a couple of blogs that I like. Ray Ward. Ward, an appellate lawyer in New Orleans, gives thoughtful, practical advice culled from actual cases and publications. Wayne Schiess. Schiess teaches legal writing at the University of Texas Law School of Law and has also written several books on this subject. I read his Writing for the Legal Audience this summer and thought it was excellent. Bryan A. Garner has become the gold standard for legal writing, and his site offers readers a free “Garner’s Usage Tip of the Day” by email. Mignon Fogarty’s Grammar Girl produces short and enjoyable podcasts on specific issues such as the difference between “which” and “that.” If I am eating at my desk, I tune her in.
The American Law Institute recently voted to withdraw its model death penalty law, stating that the system is unfixable. The ALI study concluded:
The foregoing review of the unsuccessful efforts to constitutionally regulate the death penalty, the difficulties that continue to undermine its administration, and the structural and institutional obstacles to curing those ills forms the basis of our recommendation to the Institute. The longstanding recognition of these underlying defects in the capital justice process, the inability of extensive constitutional regulation to redress those defects, and the immense structural barriers to meaningful improvement all counsel strongly against the Institute’s undertaking a law reform project on capital punishment, either in the form of a new draft of § 210.6 or a more extensive set of proposals. Rather, these conditions strongly suggest that the Institute recognize that the preconditions for an adequately administered regime of capital punishment do not currently exist and cannot reasonably be expected to be achieved.
Click here to read the full story.
As most of you know, Illinois' estate tax now kicks in at $2 million, while the first $3.5 million of an estate are exempt from federal tax. That obviously poses a challenge for estate planners. Fortunately, though, in September the governor signed Illinois' QTIP election into law. So what does that mean? I'll let Jason S. Ornduff take it from here (he wrote about the new QTIP law in the latest ISBA Trusts and Estates newsletter): "Before the state QTIP election, estate planning attorneys and their married clients faced a quandary; either fund a credit shelter trust up to the maximum federal exemption and pay Illinois estate tax at the first death, or fund the credit shelter trust with the lesser of the two exemptions, avoiding the Illinois estate tax at the first death, but potentially wasting up to $1.5 million of the federal exemption which could cause federal estate tax to be due at the second death. "After legislation authorizing state QTIP election was enacted, a properly drafted estate plan permits a married couple to leverage at both the federal level and the state level – that is, for federal estate tax purposes, the entire federal exemption is used by (1) a $2 million federal and state credit shelter trust and (2) a $1.5 million federal credit shelter trust that is, for Illinois estate tax purposes only, a QTIP marital trust that qualifies for the marital estate tax deduction." Read the rest of his article, and watch for one by Robert Kolasa on the new QTIP law in the December Illinois Bar Journal.
In keeping with the Illinois Supreme Court's desire to bring greater public access and understanding to the courts, audio recordings of all oral arguments in the Illinois Appellate Court will soon be available on the court's website. The new access will be available beginning Monday, Nov. 2 at www.state.il.us/court. The appellate courtrooms in all five Judicial Districts have been equipped with digital audio recording systems that will preserve audio quality long term for archival purposes. The systems also are compatible with standard computer software readily available on most person computer systems, and will allow the legal community and the general public to listen to and download audio recordings of all appellate arguments and workers' compensation hearings.
Referrals -- and the fee sharing that often goes with them -- are a common and perfectly legitimate part of p.i. practice. But when it comes to fee sharing, you have to get it right. Make a mistake and you can quickly find yourself in trouble with the ARDC. That's why you'd be wise to take a look at Albert E. Durkin's concise summary of fee-sharing basics in the latest Tort Trends, newsletter of the ISBA Tort Law Section. The biggest source of trouble, Albert says: "Receiving a case from another attorney can become problematic when [he or she]...cannot be a 'referring attorney' as defined under the provisions of IRPC 1.5, and, therefore, cannot be disclosed as sharing in the fees or sharing in the financial responsibility of a case to the client. Examples...are when the referring attorney either has a conflict of interest or works for a firm or agency that prohibits maintaining a financial interest in cases outside of their employment."
This spring's budget bill, Public Act 96-45, changed tax policy effective for tax years ending Dec. 31, 2009 by limiting partnerships’ deduction to “guaranteed payments” instead of “reasonable compensation” for the Personal Property Replacement Tax. That change generally limits the deduction to income partners because equity partners’ income is based on their share of the distributable income of the partnership. House Bill 2239 (Currie, D-Chicago; Harmon, D-Oak Park) restores this deduction.  It has passed both chambers today and will be sent to the Governor within 30 days for his signature, amendatory  veto, or veto.
OK, maybe I'm mixing my metaphors. Or cliches. But you get the point, right? Michael A. Mattingly puts it better in the latest issue of The Bottom Line, newsletter of the ISBA's Standing Committee on Law Office Management and Economics: "[W]hen it comes to paying their paralegals, legal assistants, office managers, administrative assistants, interns and other employees, law firms ironically end up violating the law as much, if not more, than other employers." Mattingly's article is full of great advice about how not to run afoul of the Fair Labor Standards Act, which, as he notes, is a strict liability statute -- one that applies to you even if you only have one employee. Read on ASAP.
Recently enacted Public Act 96-555 increased the fees to petition Illinois government for registered lobbyists and their clients to a $1,000 per year. The fees had been $150 for Sec. 501(c)(3) corporations and $350 for everybody else. This applies to any person or group that falls under the definitions of the Lobbyist Registration Act. Part of the revenue currently generated goes to enforcement of the Act and part goes to the General Revenue Fund. The dedicated part of the enforcement fund now has a $400,000 balance. There is an effort underway to persuade the General Assembly to reduce these fees back to $150 and $350 this week in veto session using Senate Bill 2109 as a vehicle.
In the latest issue of ISBA's Trial Briefs newsletter, Judge Barbara Crowder discusses some important changes to the business of instructing Illinois jurors. Among them: IPI Civil 1.01 ("Preliminary Cautionary Instructions") now forbids jurors from using "cell phones, text messaging, internet postings and Internet access device" and doing independent research in connection with their duties. Also, Supreme Court Rule 239 was amended to provide that jurors receive a written copy of the instructions after closing argument. And these are just two of the changes wrought, all of which are to the good, Crowder opines. "Both new IPI 1.01 and the changes to Supreme Court Rule 239 will enable the jurors to better understand and follow the evidence and to reach a decision," she writes. Read the article.