Articles Posted in Civil Procedure

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In a case involving Donald Howell, who was born with profound cognitive impairment and who had received a settlement of $11 million from a Chicago landlord from lead-poisoning, the issue here was, could the court “substitute judgment” on where his money would go at the time of his death? Relying on the “substituted judgment” doctrine, his co-guardians, Northern Trust Co. and LaTanya Turks, argued that Donald would want his money to go to Turks, his mother and full-time caretaker, rather than also being shared under Illinois Intestacy Law with family members, which included his father and ten half-siblings born to ten different women who allegedly had no significant role in his life.

Under the Illinois Probate Act, Section 11a-18(a-5) authorizes guardians to draft estate plans that depart from the default formula for distributing a decedent’s assets. That section of the statute, which refers to acting “in keeping with the ward’s wishes so far as they can be ascertained,” also says the “ward’s wishes, as best they can be ascertained, shall be carried out.”

In this probate matter, the “ward’s wishes” provisions were in conflict with the court- appointed guardian ad litem who opposed the estate plan suggested by Northern Trust and Turks. According to the guardian ad litem, the proposed estate plan was improper because Donald never had testamentary capacity and could not express any wishes about who would inherit his money on his death.

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Currently under Federal Rules of Civil Procedure Rule 34, a document request cannot be served on an opposing party until the attorneys have met and “conferred as required by Rule 26(f)” with only a few exceptions. When the lawyers meet, “the parties must consider the nature and basis of their claims and defenses and the possibilities of promptly settling or resolving the case; make or arrange for disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”

Under the new rules approved by the U.S. Supreme Court on April 29, 2015 as amended and referred to Congress, the rules will become effective on Dec. 1, 2015, parties will be permitted to deliver Rule 34 document request 21 days after service of summons and complaint. Specifically, Rule 26(d)(2) will be added, which provides as follows:

(d) TIMING AND SEQUENCE OF DISCOVERY

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(2) Early Rule 34 Requests.

(A) Time to deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:

(i) To that party by any other party, and
(ii) By that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

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The U.S. Court of Appeals for the 7th Circuit in Chicago has affirmed a decision by the U.S. district judge who refused to reopen a default judgment. Kyler Moje, a hockey player on the Danville Dashers of the Federal Hockey League, lost an eye to high-sticking during a game against the Akwesasne Warriors. Moje sued Oakley Inc., which made the visor that Moje blamed for offering inadequate protection to his face and eyes. But Moje also sued the Federal Hockey League itself.

Rather than notifying its liability insurer, the Federal Hockey League hired a lawyer based in Syracuse, New York, John LoFaro. A month after the lawsuit started in the U.S. District Court, Oakley’s attorney called Dan Kirnan, the Federal Hockey League president, to ask why it did not file an answer to the complaint filed against it. Kirnan in turn contacted LoFaro, the League attorney. LoFaro told Kirnan that he had filed an answer to the complaint. LoFaro sent the league what he claimed to be a copy of that answer.

However, the court’s docket did not reflect any such court filing made on behalf of the defendants. Moje asked the court to enter a default judgment. LoFaro did not respond to the default motion nor the court entry of the default judgment. The court permitted Moje to claim damages. Four months after the lawsuit was begun, the U.S. District Court entered a final judgment of $800,000 for the damages suffered by Moje against the Federal Hockey League.

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Under the Illinois Code of Civil Procedure §2-203.1 “Service by Special Order of Court” is allowed if it is impractical to serve someone (a defendant) at his or her place of abode. In that case, the court can direct a comparable method of service in any manner consistent with the process.

A motion to serve someone under Section 2-203.1 requires the movant to provide an affidavit that includes a specific statement that a “diligent inquiry as to the location of the individual” was made. Failure to make a diligent inquiry can result in improper service.

In the case of Sutton v. Ekong, a default judgment was entered in the amount of $199,998.32 because the defendant had defaulted after allegedly been served properly through the Secretary of State of Illinois. Many attempts had been made on the defendant to serve him with summons at his home and by use of a special process server without success. After failing to appear in court, the plaintiff then served the defendant through the Illinois Secretary of State. The court allowed this after the plaintiff asked the trial court for process of service in that fashion.

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Former Republican U.S. Senator John Danforth has left the St. Louis law firm of Bryan Cave because of a high-profile case that involved a $77 million jury verdict against Wells Fargo & Company. It was an odd ending to a long relationship of a stalwart of Missouri politics and law. Danforth’s family has a long, proud history in business, law, politics and philanthropy in St. Louis and the state of Missouri.

Danforth has worked at the St. Louis-based law firm Bryan Cave for decades but left because of a dispute over a claimed conflict of interest. He testified in a St. Louis court supporting the plaintiff Barbara Morriss, who sued Wells Fargo Bank because it was claimed to have mismanaged the family’s trust allegedly costing her millions of dollars. Bryan Cave had represented Reuben Morriss, a former chairman of a now merged St. Louis bank, Boatmen’s Trust Co. Wells Fargo through two predecessors was acting a custodian of one of the Morriss trusts and a trustee of another trust fund.

Danforth testified that the bank was legally to blame for the losses of the family’s trust and thus took the side of Ms. Morriss, the plaintiff against the firm’s client, Wells Fargo. It was reported that Danforth was a longtime family friend of Ms. Morriss and her husband, Reuben Morriss, who died in 2006. The case centered on the claim that while Reuben Morriss was in a “stupor” caused by Alzheimer’s disease his son Doug Morriss in cooperation with Wells Fargo lost millions of dollars from the family’s trust. The law firm of Dowd, Bennett represented Morriss in the lawsuit. It was claimed that Wells Fargo chose not to inform Barbara Morriss that the investment strategies taken were risky and that the bank had a conflict of interest in that it loaned $40 million to Doug Morriss using the family trust as collateral.

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The Illinois Appellate Court for the 1st District has reversed and remanded a case decided in the Circuit Court of Cook County. In August 2011, Virginia Jahrke arrived at the health club belonging to Capital Fitness Inc. for her usual one-hour training session.

After she finished her session, she went into a locker room and changed and started to walk out. As she was walking, she slipped and fell on something wet on the floor.

On Dec. 7, 2011, Jahrke filed a lawsuit against Capital in the Circuit Court of Cook County alleging that the company chose not to properly maintain the locker room or provide warning of a slippery floor and that its negligence caused her to slip and fall, injuring herself.

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The Illinois Appellate Court for the 1st District has affirmed a trial court’s decision regarding a settlement. Gary Hines and Lisa O’Rourke were in Chicago visiting Hines’s father, Norman, near the end of 2012. As the visit was ending, Norman drove the two to the airport. When they arrived, Norman Hines and O’Rourke began to take their luggage out of the trunk. E. James Davis was in a parking space behind them trying to pull out. His foot became trapped between the gas pedal and brake and the car accelerated striking both Norman Hines and O’Rourke and pinning them against the car. Both Norman Hines and O’Rourke suffered severe injuries and filed a lawsuit against Davis.

Hines and O’Rourke hired a lawyer to represent both of them but filed separate lawsuits. When Hines died on May 20, 2013, David Hines and Diane Galante filed as special administrators of Norman Hines’s estate and continued the lawsuit on the estate’s behalf.

Davis offered $1.3 million, the limit of his policy of insurance, in exchange for dismissal of all of the claims for both plaintiffs. The plaintiffs were given 21 days to respond, and after the 21 days the lawyer told the judge that they had failed to reach an agreement.

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In the model years 2009 and 2010, Toyota’s Corolla has been targeted as a dangerous vehicle because of the electric power steering (ETS) system. In fact, two Toyota Corolla owners, one in New York and one in Pennsylvania, filed suit. The Corolla owners have alleged that the steering system’s defect caused their cars to drift out of control. The lawsuits claim that the steering system defect is a serious safety problem and that Toyota was aware of the problem but did nothing to fix it.

It was alleged in the lawsuit that the defect in the electric power steering system caused a driver to spin out of control on a highway, cross the center line into oncoming traffic before crashing into an embankment. The plaintiffs have alleged that the defect in the electric power steering system is significant and widespread, and they seek to have a class certified by the court.

Toyota, on the other hand, has argued that the court should not allow class certification nationwide because the vehicle shares no common problem. Toyota said the defect in the steering system affects only a small number of Corolla owners. Toyota also said it has reviewed the reports of steering problems and has found that the individual complaints may relate to the way steering feels to them or tire conditions on the particular vehicle.

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Cook County has the largest single unified court system in the United States. For the first time, on Jan. 5, 2015, the Circuit Court of Cook County began allowing media cameras in courtrooms. The pilot program has limited to the Leighton Criminal Court building at 26th and California streets in Chicago.

In order to take photographs or film in a Cook County courtroom, the media would have to request authority in advance. The privilege to photograph or videotape court proceedings was initiated by the Illinois Supreme Court’s Extended Media Coverage (EMC) policy and the court’s authorization, which extended media coverage in Illinois courts; it is referred to as M.R 2634.

The pilot program is designed to allow for increased transparency in the Cook County court system.

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It is perhaps a custom that grew out of an era nearly 200 years ago that elected judges would be better suited to carry out the law and protect the integrity of the United States court systems. The reason many states adopted the laws that would allow the election of judges was because so long ago, perhaps in the 1820s, judges were appointed by those in power and influence and thus judges were likewise influenced by those who appointed them. It was thought that the election of judges by the area’s residents would place the best qualified judges on the bench and thus render fair and reasoned opinions absent the influence of the powerful.

A 2007 University of Chicago Law School study found that appointed judges write fewer opinions than elected judges. However, the written opinions by appointed judges tend to be of a higher quality. “A simple explanation for our results,” wrote Stephen Choi, J. Mitu Gulati and Eric Posner, “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people.”

The election of judges occurs in 39 U.S. states, including Illinois. Simply put, judges can earn a spot on the bench by winning an election — often, one that is partisan. In fact in some states, the elected judges do not need to be lawyers. This is unheard of throughout most of the civilized world.

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