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Practice News

If you've been hired to bring a lawsuit and you commit malpractice by, say, blowing a statute of limitations, it's conceptually easy to calculate actual damages, authors Kenneth J. Ashman and Neal D. Kitterlin observe in the July General Practice, Solo & Small Firm newsletter. "If the defendant had the money to pay the damage award and...the client would have succeeded in his suit against the defendant but for the attorney’s malpractice, the client suffered actual damages—that is, real loss—as a result of the attorney’s neglect."

So what if a defense lawyer commits malpractice and loses as a result, but the defendant-client doesn't have the money to pay the judgment? Has he suffered actual damages? Yes, ruled the Illinois Appellate Court in Fox v. Seiden: "[T]he existence of the judgment alone is sufficient to constitute actual damages," Ashman and Kittlerin write. Read their analysis.

Earlier this month the ISBA Board of Governors approved advisory ethics opinion 10-01, the digest of which is as follows: "A law firm’s utilization of an off-site network administrator to assist in the operation of its law practice will not violate the Illinois Rules of Professional Conduct regarding the confidentiality of client information if the law firm makes reasonable efforts to ensure the protection of confidential client information." Read the opinion.
Illinois Supreme Court Justice Lloyd A. Karmeier announced today that an application process has begun for a Circuit Court vacancy in the Fourth Judicial Circuit. The at-large Circuit vacancy is being created by the announced resignation of Circuit Judge John Coady, effective October 3, 2009. Under the Illinois Constitution, the Supreme Court holds the authority to fill interim judicial vacancies. Justice Karmeier uses an application, evaluation and interview process to make recommendations to the Court for vacancies in the Fifth Judicial District. Notice of the vacancy has been posted in courthouses throughout the Fourth Judicial Circuit. Applicants must submit a cover letter with the Requested Information of an Applicant Form to: Justice Lloyd A. Karmeier, Supreme Court of Illinois, P.O. Box 266, Nashville, IL 62263. The form may be obtained from the office of Chief Judge Gene Schwarm of the Fourth Judicial Circuit; the presiding judge or circuit clerks of the counties within the Fourth Circuit or from Justice Karmeier. Applicants' cover letter and completed form must be received in Justice Karmeier's office no later than Monday, August 17, 2009. The person appointed to fill the vacancy will serve until the position is filled through the November, 2010 general election. The appointment will terminate December 6, 2010. To be eligible for appointment, a person must be a resident of the Fourth Judicial Circuit at the time of the appointment. The Fourth Judicial Circuit is comprised of nine counties: Clinton, Marion, Clay, Jasper, Effingham, Fayette, Shelby, Christian and Montgomery.
Chief Judge James F. Holderman announced today that the U.S. District Court Clerk's Office has now made the application for the position of United States Magistrate Judge available online. The Court anticipates that one or more vacancies will exist for the position of United States Magistrate Judge this year. Chief Judge Holderman intends to appoint a Merit Selection Panel that will screen the candidates and make recommendations to the district judges in the fall of 2009. The Court hopes to fill the open Magistrate Judge positions by spring 2010. These are full-time positions with an eight-year term of office and a duty station at the U.S. Courthouse in Chicago, Illinois. The duties of the position of a United States magistrate judge include the conduct of most preliminary proceedings in federal criminal cases, the trial and disposition of federal misdemeanor cases upon consent of the litigants, the conduct of various pretrial matters and evidentiary proceedings on reference from the district judges of the Court, and the trial and disposition of federal civil cases upon consent of the litigants. To be qualified for appointment as a United States magistrate judge, an applicant must be, and have been for at least five years, a member in good standing of the bar of the highest court of a State, the District of Columbia, the Commonwealth of Puerto Rico, or the Virgin Islands of the United States, and have been engaged in the active practice of law for a period of at least five years.
Chief Circuit Judge Stephen Culliton has named two finalists for the Office of Associate Judge in the 18th Circuit Court in DuPage County. The finalists are seeking to fill the vacancy created by the retirement of Associate Judge Kenneth A. Abraham. The two finalists are:
  • Paul A. Marchese, DuPage County Assistant State's Attorney
  • Robert A. Miller, Chief Public Defender for DuPage County
The Circuit Judges will select Marchese or Miller by secret ballot.
Twelve states -- including neighboring Missouri and Wisconsin -- allow property owners to avoid both probate and the complications of joint ownership by using transfer-on-death deeds. The concept is straightforward enough. When you die, your beneficiary takes title to your property. It doesn't pass by way of your will. No probate. But a TOD deed is revocable if you change your mind before you die. There are some potential pitfalls, of course, and TODDs wouldn't be the best choice for every client. But at ISBA President John O'Brien's request, the Trusts and Estates and Real Estate Section Councils are working on draft TODD legislation. You can learn more about TODDs and why some ISBA members think Illinois should become a TODD state by reading Eureka lawyer Darrell Dies' article in the July ISBA Trusts and Estates newsletter.
Soon to be released FTC guidelines will up the ante for bloggers who review or endorse products, according to Adam Snukal in the July 2009 issue of The Corporate Lawyer, newsletter of the ISBA's Section on Corporate Law. One change wrought by the new guidelines: a blogger who reviews a product will be deemed an "endorser." That means that, "should the blogger fail to verify (or request verification of) an advertiser’s substantiation with respect to any product claims, the advertiser can be subject to liability for false and unsubstantiated statements made through the blogger’s endorsement, and the blogger may also be subject to liability for the same unsubstantiated representations (intentional or unintentional) made in the course of his/her review (aka endorsement)." Read the article.
By Rodney R. Nordstrom Consisting of Moe Levine's most memorable lectures and summations, a  new book, Moe Levine on Advocacy, offers everything the reader expects.  Don Keenan does an excellent job in the forward to motivate the reader to read more of the book. Specifically, Keenan divides Levine's (1908 -1974) trial advocacy skills into five main points: mastery of the understatement, appeal to each audience's uniqueness, appeal to jurors' spirituality, elevation of jury's consciousness of the community and challenging jurors to make the "right" decision. These five cardinal points summarize Levine's smooth approach to effective summation.
Judging by the traffic on ISBA's criminal-law listserver, few topics are more important to day-to-day criminal defense practice than expungements. And on that topic, Coles County lawyer Jeremy J. Richey has some advice for his peers -- don't put them off. In a recent post to his excellent East Central Illinois Criminal Law & DUI Weblog, he says this: "Since expungement is a slow process, a person should seek expungement the first day he is eligible for it and not when he needs it later down the road." Read the whole thing. And if you're an ISBA member, sign up for the criminal-DUI-traffic listserver and other e-mail discussion groups here.
Watch for Helen Gunnarsson's LawPulse item in the not-yet-published August Illinois Bar Journal about a scam e-mail solicitation that's making the rounds. Helen will have details, but in the meantime you can read a year-old California Bar Journal article describing this "request for Legal assistance," purportedly from a Chinese textile company. Thanks to Springfield paralegal Caren Mansfield, who alerted ISBA to the scam and the CBJ article.