The Docket - January 2021

THE

DOCKET The Official Publication of the Lake County Bar Association • Vol. 28 No. 11 • January 2021

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Contents THE DOCKET • Vol. 28, No. 1 • January 2021

FEATURES 12 Netflix and Chill: Part Deux!

BY HON. CHUCK JOHNSON AND ALEX ZAGOR

A publication of the

300 Grand Avenue, Suite A Waukegan, Illinois 60085 (847) 244-3143 • Fax: (847) 244-8259 www.lakebar.org • info@lakebar.org THE DOCKET EDITORIAL COMMITTEE Jeffrey A. Berman,Co-Editor Hon. Charles D. Johnson,Co-Editor Jennifer C. Beeler Hon. Michael J. Fusz Hon. Daniel L. Jasica Sarah A. Kahn Kevin K. McCormick Hon. Raymond J. McKoski Tracy M. Poulakidas Stephen J. Rice Neal A. Simon Hon. ­­­James K. Simonian Rebecca J. Whitcombe Alex Zagor STAFF Dale Perrin Executive Director Jose Gonzalez Membership Coordinator Katherine Montemayor Office Manager

AD SIZE 1/8 Page 1/4 Page 1/2 Page Full Page Inside Front or Inside Back Cover

Back Cover

ONE ISSUE

6 ISSUES

16 Criminal Orders of Protection and Deleon

BY KIMBERLY J. FURRER 20 The Top Five Causes of Action Related to Wills and Trusts and How to Defend Against Them

BY MATTHEW T. CARUSO AND JAMES L. RYAN

COLUMNS 2 President’s Page Thank You

BY PATRICIA L. CORNELL, PRESIDENT

4 The Chief Judge’s Page 19th Judicial Circuit Court Update

BY CHIEF JUDGE DIANE WINTER

26 The Meeting Minutes October 15, 2020

BY KATHARINE S. HATCH, SECRETARY

28 In the Director’s Chair Farewell

BY DALE PERRIN, EXECUTIVE DIRECTOR

LCBA EVENTS 4 New Members 7 Grapevine 11 Lawyer Referral Service 15 2020 LCBA Office Rental Pricing 24 Foundation & Committee Minutes 27 Bulletin Board 27 Monthly Committee Meetings BC Member Reception

6 Bar Foundation

The Positives

BY NICHOLAS A. RIEWER, PRESIDENT

8 Monthly Case Report

12 ISSUES

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Thank You

I

have gone back and forth on what to write for my January President’s Page.

I simply don’t have enough “oomph” to create an article implying that 2021 is going to be wonderful. While I was dreading the LATE creation of this column, a topic dropped in my lap.

By the time this appears in The Docket, everyone will have heard that Dale Perrin, our Executive Director, has

Hon. Patricia Cornell President Joseph Fusz First Vice President Tara Devine Second Vice President Kathleen Curtin Treasurer Katharine Hatch Secretary Stephen J. Rice Immediate Past President David Del Re Thomas Pasquesi Dwayne Douglas Daniel Hodgkinson Hon. Jacquelyn Melius Craig Mandell

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given his resignation. Dale was offered a better “gig,” as they say.

Past President Jennifer J. Howe put together a committee to hire an Executive Director and Dale was hired in the middle of 2018. Prior to his hiring, the Executive Board (comprised of Jennifer J. Howe, Brian J. Lewis, Don Morrison and Stephen J. Rice) together with the assistance of Jose Gonzalez and Virginia Elliott, figured out a way to keep the office running. To say that these angels worked tirelessly to figure out everything is an understatement. I don’t recall if they were ever thanked publicly for their dedication, determination and amazing attitudes. I wanted to take this opportunity to make sure they all know how grateful the members are for what they did to keep the Lake County Bar Association afloat during that crazy time.

Dale was previously employed at the Lake Zurich Chamber of Commerce, so switching employment to a bar association was not a big deal – yeah right! There was a great deal of learning in

The

President’s Page

general. There were the two separate boards (Association and Foundation), chairs of the various committees, all the luncheons, the books, The Docket, the Lawyer Referral Service, the computer programs used by the LCBA, the meetings, the seminars, the policies, managing people and a building, and don’t forget about all the personalities!

So here we are about two-and-a-half years later and, thanks to Dale (and the previously mentioned Executive Board and Boards since that time including Treasurer, Kathleen Curtin) the Lake County Bar Association and Lake County Bar Foundation have realistic budgets; two successful fundraisers were held (one virtual); we have a well-functioning building; we adapted to using Zoom; our membership numbers have been steady; and, prior to COVID, we had very suc-

BY PATRICIA L. CORNELL PRESIDENT cessful out-of-state seminars for many committees, and now we are holding virtual seminars.

I am grateful for all the procedures and policies that Dale has put in place (some of which were created while working in conjunction with various board members and I am thankful for their efforts as well). I appreciate all the late hours that Dale has spent at the Lake County Bar Association without complaint—he has been a tireless worker on your behalf. I hope that you will join me in congratulating Dale Perrin and wishing him success in his future endeavor!

On a separate, but related note, please note that the Lake County Bar Association will be seeking nominations for placement on the board. Please be sure to complete the required documentation and submit it by February 1, 2021.

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January 2021

3

19th Judicial Circuit Court Update

H

appy New Year!

That’s all I’m going to say, I don’t want to jinx anything for 2021.

Soon the 4th floor courtrooms will be moving to the Babcox Center courtrooms 221 (now T-121) and 220 (now T-120).

The dimensions of the courtrooms have not been enlarged, but the furnish-

Welcome

New LCBA Members ATTORNEYS

David Alexander Alexander Law, LLC Scott Hoffert Lake County State’s Attorney’s Office

ASSOCIATES Holly Kim Lake County

Todd Johnson LR Windsor

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ings have been updated, cleaned, and refinished.

The third renovated courtroom will be T-110 the former Bond Court. The glass and partition wall previously needed when the courtroom served as Bond Court has been removed so the courtroom will be able to accommodate jury trials. The new courtroom locations will result in reassignments of Judges from the fourth floor to the refurbished courtrooms. The moves will take place hopefully in January, but construction schedules are never precise, so no firm date can be provided as to the effective date for reassignments. Another change for the misdemeanor courtrooms will be a rebalancing of the court calls. Over the years, the number of cases assigned to each misdemeanor courtroom has changed and the cases need to be redistribut-

The

Chief Judge’s Page ed. To rebalance the DUI courtroom workloads, a few jurisdictions will be switching courtrooms effective February 1, 2021.

A revised court calendar has been prepared and will be posted to the website of the 19th Judicial Circuit.

The Family Division will also experience change; starting in January, adoption cases will move back to the Waukegan courthouse from the Depke Juvenile Complex Center in Vernon Hills.

The only exception will be DCFS involved adoptions which will continue to be heard by the juvenile judges. All non-DCFS involved adoptions will be heard in the main courthouse before Judge Simonian.

The uncontested adoption call will be heard on the second Tuesday and the third Wednesday of the month in C-302 at 2:00 p.m. Contested adop-

BY CHIEF JUDGE DIANE WINTER tions will continue to be heard by the judges with family division court calls.

Attorneys on the 19th’s current GAL/Child Representative Appointment list interested in being added to the GAL Adoption list, please email our Family Division Judicial Assistant, Unnikue Edwards at uedwards@lakecountyil. gov to let her know of your interest. I am also pleased

Judge Ceckowski

to report that the flat fee of $250 is being raised to $350 for GALs in adoptions effective January 1, 2021 for new filings.

Finally, it is with some mixed emotions that I pass along the news of Judge Ceckowski’s retirement effective January 29, 2021. Judge Ceckowski has served in Juvenile Court for over 20 years so her expertise will certainly be missed. Most judges are rotated out of the juvenile division at the four- and five-year mark. But Judge Ceckowski, or Judge Val as she prefers to be called, has such a passion for the work of our juvenile court that no Chief Judge could convince her to take another assignment.

Judge Val has championed many new programs for juvenile offenders, notably

our FACE-IT program, a residential treatment program for juveniles.

She also promoted the annual GIRLWISE conference which seeks to empower young women.

Another aspect of the assignment to a juvenile call is the need for the judge to work closely with our justice partners and to collaborate with community organizations.

Judge Ceckowski has participated in numerous out-of-court planning meetings and community events to rehabilitate juvenile offenders. The 19th Judicial Circuit thanks Judge Ceckowski for the many years she devoted to the juvenile court and the innovations she directed and supervised. We wish her all the best in her retirement.

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January 2021

5

The Positives

A

s I sit here on December 21, writing my January column, several things have occurred to me. The first was that in my column two months ago, I was hoping BOARD OF TRUSTEES Nicholas A. Riewer President Carey J. Schiever Vice President Joann M. Fratianni Secretary Perry S. Smith Jr. Treasurer Jeffrey A. Berman Immediate Past President Jennifer L. Ashley Nandia P. Black Douglas S. Dorando Kristie Fingerhut Hon. Fred Foreman (Ret.) Joseph M. Fusz Scott B. Gibson Kenneth J. Glick David J. Gordon Keith C. Grant Amy L. Lonergan Fredric B. Lesser Steven P. McCollum Joseph McHugh Joseph Morrison Michael G. Nerheim Michael Ori Shyama Parikh John Quinn, Sr. Melanie Rummel David Stepanich Hon. Henry C. Tonigan (Ret.)

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by December, we would have an agreement from both parties as to who the new president is. Wishful thinking, huh? Secondly, the Bears just won their second game in a row, thereby screwing up a higher draft pick. I suppose it doesn’t really matter, since no matter where they pick in the draft, it’s almost guaranteed that the player they pick will be a bust. And number three, I’m about to go out Christmas shopping and realized I am starting earlier then ever. Speaking of Christmas shopping does anybody know where the nearest Walgreens is and whether they still have the Popeil Pocket Fisherman?

My wife’s gonna love it.

As my secretary was typing this, she stopped and came into my office to point out, if that’s my idea of a gift, I may need somewhere to stay for a few weeks. So, if anybody has an extra room available from December 26 through the end of Janu-

BY NICHOLAS A. RIEWER PRESIDENT ary, please let me know.

On a more serious note, I would like to take this opportunity to wish all of you a very healthy and safe New Year during 2021. I know that 2020 was, at best, a difficult and trying year for most of us. Rather than dwell on the negative, I would like to point out a few positives that the Lake County Bar Foundation experienced.

Although we had to cancel our Biennial Gala because of the pandemic, we were able to have a very successful virtual fundraiser, “Art With A Heart.” The virtual fundraiser raised a total of $16,430.00. The expenses for the fundraiser were only $652.00, netting us $15,778.00 to distribute to various charitable organizations.

Immediately after writing this column, I was

lucky enough to go to the Lake County Bar Association offices and present checks to three worthy organizations as follows: 1. N ineteenth Judicial Circuit Self-Represented Litigant Program -- $3,000 2. Art Impact Project $8,000 and 3. Waukegan-to-College $2,500 (see photos in Grapevine) In addition, the generosity of the Bar Association members making contributions to the Foundation through the dues check-off far exceeded that which we received the prior year.

This will give the Foundation the opportunity to give more money to worthy organizations before the end of our fiscal year, on June 30, 2021.

We also were able to

make a $5,000 donation to the NICASA Teen Court Program as a result of a donation from one of our members. We received two Cy Pres Awards in the last few months, which will allow us to donate additional monies towards the charities, as well as cover some of the expenses associated with the Lake County Bar Association offices.

Another positive that occurred during 2020, was that the Foundation

was able to payoff one of two loans that were taken out five years ago for the construction of our beautiful offices. The money to pay off that loan came from the generous pledges that many of our members made five years ago. Even though 2020 was a difficult year financially for many of us, those members that had pledges due during the year, stood by their commitment and were able to make their payments. As a result, we were able to

pay off the loan in a timely fashion. Thank you to all of you who made those pledge payments.

Both of the loans that I mentioned, were with the Lake Forest Bank & Trust. The second loan with Lake Forest Bank & Trust was recently refinanced with very favorable terms. I would like to thank the bank for their continued support of the Foundation and Association.

Although 2020 was a

difficult year, there were many positives, as set forth above, that resulted from the generosity and hard work of many of our members and their friends. Thank you to all who participated.

I look forward to the coming year, hoping that at some point, things will start getting back to a little more of a normal routine.

In closing, I hope you all have a very prosperous, happy, and safe New Year.

Now I am off to Walgreens.

The

Grapevine

Lake County Bar Foundation President, Nick Riewer presented grant checks to the three beneficiaries of the Art With a Heart fundraising event recently held by the Foundation.

Nick Riewer, far right, presents $8,000 to the Art Impact Project represented by board members, from left to right, David Motely, Divina Ayala and AIP founder Vickie Marasco.

Nick Riewer, right, presents $2,500 to Waukegan to College Executive Director, Elyse Danckers.

Nick Riewer, center, presents $3,000 to the 19th Judicial Circuit’s Self-Represented Litigant Program Coordinator, Frances Paparigian, far right, and 19th Judicial Circuit Staff Attorney, Beth Bogie, far left.

If you have news to share? We would love to hear about it!

Please send your information to Dale Perrin at dale@lakebar.org.

January 2021

7

December 2020

Monthly Case Report Editor’s Note: Monthly Case Report is provided by 19th Judicial Circuit Law Librarian, Emanuel Zoberman

Illinois Supreme Court – Civil Raab v. Frank Supreme Court of Illinois, November 21, 2019, 2019 IL 124641, 157 N.E.3d 470 Background: Motorist sued farm tenant for injuries sustained when it collided with one of tenant’s cows that had escaped through fence and entered road.

Tenant filed third-party complaint against adjacent landowners, seeking contribution under Joint Tortfeasor Contribution Act based on theories of negligence and breach of duty under Fence Act. After motorist settled claims against tenant, landowners moved for summary judgment on third-party claims. The Circuit Court, Jo Davies County, William A. Kelly, J., entered summary judgment for landowners, and tenant appealed. The Appellate Court, 124 N.E.3d 544, affirmed in part, reversed in part, and remanded. Landowners petitioned for leave to appeal.

Holdings: The Supreme Court, Garman, J., held that: 1. There was no common law cause of action in Illinois for the tort of estray, as a basis for contribution; 2. Animals Running Act did not apply to landowners, as a basis for contribution; and 3. Tenant’s failure to provide adjacent landowners with notice of a defect in the fence between two properties, as prerequisite to a claim under the Fence Act, was fatal to the third-party claim for contribution.

Judgment of the Appellate Court affirmed in part and reversed in part; judgment of the Circuit Court affirmed. ________________________________________________ Horsehead Corporation v. Department of Revenue Supreme Court of Illinois, November 21, 2019, 2019 IL 124155, 157 N.E.3d 453 Background: Taxpayer filed petition for review of decision of Independent Tax Tribunal affirming Illinois Department of Revenue’s (IDOR) notices of taxpayer’s tax liability as well as the imposition of the use tax, interest, late filing penalties, and late payment penalties totaling approximately $1,521,041. The Appellate Court, Pierce, J., 112 N.E.3d 646, affirmed. Taxpayer’s decision for leave to appeal was granted.

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Holdings: The Supreme Court, Theis, J., held that: 1. Metallurgical coke did not qualify for a use tax exemption for chemicals effecting direct and immediate change upon a product being manufactured, but 2. Decision to uphold late payment and filing penalties was against the manifest weight of the evidence.

Affirmed in part and reversed in part. ________________________________________________ Sanders v. Illinois Union Insurance Company Supreme Court of Illinois, November 21, 2019, 2019 IL 124565, 157 N.E.3d 463 Background: Criminal acquittee, as city’s assignee, brought action against city’s primary and excess insurers for declaratory judgment and seeking damages for breach of contract based on denial of coverage for malicious prosecution claim following acquittal during policy period. The Circuit Court, Cook County, No. 16 Ch 02605, Celia Gamrath, J., 2018 WL 9693972, granted insurer’s motion to dismiss. City and acquittee appealed. The Appellate Court, Pucinski, J., 125 N.E.3d 1071, reversed and remanded. Insurers’ petition for leave to appeal was granted.

Holding: The Supreme Court, Theis, J., held that malicious prosecution offense occurred at time of police officers’ wrongful conduct which was before effective date of policies, rather than at the time of acquittee’s exoneration on the murder charge.

Reversed. ________________________________________________

Second Appellate – Civil REEF-PCG, LLC v. 747 Properties, LLC Appellate Court of Illinois, Second District, June 29, 2020, 2020 IL App (2d) 200193 Background: Receiver filed mortgage foreclosure action against mortgagor and also sued mechanic’s lien holders alleging mortgagor was in breach by failing to pay amounts due under the mortgage agreement and allowing mechanic’s liens to be placed on the property.

The Circuit Court, DuPage County, Bonnie M. Wheaton, J., granted receiver’s motion for receiver certificates.

Mechanic’s lienholders filed an interlocutory appeal.

Holdings: The Appellate Court, Brennan, J., held that: 1. Trial court had the equitable power to issue receiver certificates and prioritize them over the mechanic’s liens, but 2. Insufficient evidence supported trial court’s decision to issue receiver certificates and prioritize them over the mechanic’s liens.

Reversed and remanded. ________________________________________________ Zemater v. Village of Waterman Appellate Court of Illinois, Second District, May 29, 2020, 2020 IL App (2d) 190013 Background: Pro se motorist brought actions in two separate counties against village for malicious prosecution and to punish village for its alleged failure to comply with Illinois Freedom of Information Act (FOIA) after he was issued a speeding citation.

After motorist sent communications via email to the president of the village while the litigation was pending, the Circuit Court, DeKalb County, William P. Brady, J., entered an order requiring motorist to communicate only with defense counsel regarding issues in the case.

After motorist again sent emails directly to the village president, the Circuit Court, Kendall County, Melissa S. Barnhart, J., found motorist in contempt for violating the trial court’s order, and awarded the village $2,031.16 in attorney fees and costs. Motorist appealed.

Holdings: The Appellate Court, McLaren, J., held that: 1. Rule of professional conduct prohibiting communication with parties represented by counsel applied to pro se motorist; 2. Trial court had reasonable basis for enforcing rule of professional conduct; 3. Order directing motorist to communicate only with defense counsel was not an injunction subject to interlocutory appeal; 4. Motorist’s noncompliance with trial order was unreasonable, deliberate, and pronounced, and thus holding him in contempt was warranted; and 5. Trial court did not abuse its discretion by awarding village $2,031.16 in attorney fees and costs.

Affirmed. ________________________________________________ In re S.F. Appellate Court of Illinois, Second District, April 2, 2020, 2020 IL App (2d) 190248 Background: Non-parent husband and wife, who for 11 months cared for minor at behest of minor’s plenary

guardian, petitioned to have guardian removed and themselves appointed as plenary guardians. After the parties entered an agreed order appointing a guardian ad litem (GAL), the Circuit Court, Kendall County, Joseph R. Voiland, P.J., set a hearing on its own motion to remove guardian, ordered removal of plenary guardian, and appointed petitioners as temporary guardians. After a hearing as to minor’s best interest, the court then appointed petitioners as plenary guardians. Guardian appealed.

Holdings: The Appellate Court, McLaren, J., held that: 1. Guardian waived objection to petitioners’ standing when she entered an agreed order with them; 2. Petitioners had standing, as interested persons, to petition for guardian’s removal; 3. Plenary guardian received a fair hearing and was not prejudiced by any formal deficiencies in procedures regarding notice; 4. Sufficient evidence supported removal of plenary guardian for good cause; and 5. Trial court did not abuse its discretion when it excluded testimony of minor’s therapist at removal hearing.

Affirmed. ________________________________________________ Grant v. Rancour Appellate Court of Illinois, Second District, June 12, 2020,2020 IL App (2d) 190802 Background: Motorists who brought negligence action against driver who caused accident filed motion for sanctions against driver for alleged failure to comply with order compelling discovery. The Circuit Court, Kane County, James R. Murphy, J., granted the motion, and issued a friendly contempt order against driver’s attorney for failure to comply with discovery and sanctions orders. Attorney appealed.

Holdings: The Appellate Court, Zenoff, J., held that: 1. Trial court did not have jurisdiction over driver’s insurer, or law firm that represented insurer, for purposes of compelling discovery; 2. Discovery order was aimed at driver and thus was valid; 3. Trial court did not abuse its discretion by issuing order compelling driver to provide amended answers to supplemental interrogatories; 4. Contempt order entered against attorneys for driver would be vacated; and 5. Attorneys for driver had good-faith purpose in bringing appeal.

Affirmed in part and vacated in part.

9

In re Marriage of Keller Appellate Court of Illinois, Second District, February 3, 2020, 2020 IL App (2d) 180960

proceed with charges of home invasion and unlawful restraint first and thus reset speedy trial time period for charges.

Background: Wife filed petition, and husband filed counterpetition, seeking dissolution of their marriage.

Wife then filed a petition for interim and prospective attorneys’ fees and costs, which the trial court granted in part. After husband failed to comply with trial court’s order, law firm representing wife filed a petition for contribution. Thereafter, law firm filed motion to withdraw, motion for interpleader, and motion seeking to hold husband in civil contempt for failing to pay fees. Wife and husband then filed an agreed joint motion to voluntarily dismiss. The Circuit Court, Lake County, Elizabeth M. Rochford, J., entered order granting wife’s and husband’s joint motion subject to payment of fees for any filing and service costs advanced by law firm. Wife and husband filed motion for reconsideration, which the trial court denied.

Husband appealed.

Affirmed. ________________________________________________

Holdings: The Appellate Court, Hudson, J., held that: 1. Attorney’s fees award was not terminated by trial court’s judgment granting wife’s and husband’s joint voluntary motion to dismiss parties’ respective petitions for dissolution of their marriage; 2. Trial court’s judgment did not place an impermissible condition upon husband’s right to dismiss; and 3. Husband lacked standing to argue that interpleader action brought by wife’s former counsel was in conflict with wife’s interests.

Holding: The Appellate Court, Jorgensen, J., held that defendant was entitled to a new sentencing hearing.

Affirmed in part, vacated in part, and remanded. ________________________________________________

Affirmed. ________________________________________________

Second Appellate – Criminal People v. Meeks Appellate Court of Illinois, Second District, July 16, 2020, 2020 IL App (2d) 180263 Background: After dismissal of appeal of conviction for home invasion and unlawful restraint, defendant petitioned for post-conviction relief, alleging ineffective assistance of appellate counsel. The Circuit Court, Kane County, Mary Karen Simpson, J., summarily denied the petition.

Defendant appealed. The Appellate Court, 51 N.E.3d 1109, reversed and remanded. On remand, the Circuit Court, Kathryn Karayannis, J., granted defendant leave to file late notice of appeal from conviction. Defendant appealed.

Holding: The Appellate Court, Seminara-Schostok, J., held that state’s decision to nol-pros earlier charge was functional equivalent of a change of election to

10 The Docket

People v. Luna Appellate Court of Illinois, Second District, September 29, 2020, 2020 IL App (2d) 121216-B Background: Defendant, who was a juvenile at the time of his crimes, was convicted in the Circuit Court, Lake County, Mark L. Levitt, J., of first-degree murder and aggravated battery with a firearm, resulting in a 51-year prison sentence for murder and consecutive 10 year sentence for aggravated battery. On appeal, the Appellate Court, 2015 WL 1880541, affirmed. The Supreme Court denied defendant’s petition for leave to appeal but directed the Appellate Court to vacate its prior decision and consider the effect of People v. Buffer, 137 N.E.3d 763.

People v. Nepras Appellate Court of Illinois, Second District, July 13, 2020, 2020 IL App (2d) 180081 Background: Defendant convicted of burglary moved for a new trial on ground that he was entitled to introduce expert witness testimony concerning his mental state at time of offense, which he had been barred from doing. The Circuit Court, McHenry County, James S. Cowlin, J., denied defendant’s motion.

Defendant appealed.

Holding: The Appellate Court, Bridges, J., held that defendant was not entitled to introduce expert witness testimony on issue of specific intent.

Affirmed. ________________________________________________ People v. Cox Appellate Court of Illinois, Second District, February 27, 2020, 2020 IL App (2d) 171004 Background: Following a bench trial, defendant was convicted in the Circuit Court, DeKalb County, Philip G. Montgomery, J., of driving under the influence of alcohol. Defendant appealed.

continued on page 14

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LAKECOUNTYLAWYER.INFO January 2021

11

Netflix and Chill: Part Deux!

I

BY HON. CHUCK JOHNSON AND ALEX ZAGOR

t has been just over 2 years since your humble authors first attempted to untangle the “Gordian Knot” of conflicting case law on how to show an evidentiary video to a deliberating jury.1

As we said then, “one would think that the protocol for playing an audio or video recording for a jury would be relatively simple, wellHon. Charles tread ground in Illinois courts.” Au D. Johnson has contraire. It turns out there were been an Assomore published opinions on this ciate Judge for subject then there are Appellate the 19th Judicial Circuit since Districts in Illinois. But fear not, be2005. He is curmused readers! Finally, the Supreme rently assigned Court has weighed in on the subject to the Criminal to conclusively put this issue to rest.

Division.

2 In People v Hollahan, the high Alex Zagor is court considered the typical scenario a Senior Staff of a deliberating jury requesting to Attorney with review a video tape that had been the 19th Judicial admitted into evidence. At the Circuit, where he trial court level, the judge granted assists the Court with adjudicathe jurors’ request. But because tion of complex the court lacked the “arrangement” 1

1 See Netflix and Chill? In the Courtroom?

The Docket, Vol. 25, No. 10, at pp. 18-21 (Oct. 2018).

2 People v Hollahan, 2020 IL 125091, ¶ 4.

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necessary for the jury to view the video in the jury deliberation room, it decided to have the jury come back into the courtroom for the viewing.3 Also present were the judge, the defendant, the attorneys for the defendant and the State, and both alternate jurors.4 The trial judge admonished everyone before the jury entered that there would be no conversation while the jurors were present, and when they returned to the courtroom, the judge advised the jurors: “Please come in and have a seat, we will not be talking to you other than to get the video, period. *** The jury has requested to see the video again. We do not have an arrangement to show it to you in the civil and criminal deliberation room. I have instructmatters. The ed everyone to not say a word and views in this article are the author’s own, and may not reflect the views of others.

3 4

Id. Id.

we will play the video for you. If you need to have the sound adjusted or anything that we can do, all right?”5 After reviewing the video and resuming their deliberations, the jury found the defendant guilty.6 On appeal from that verdict, the defendant argued that the trial court’s handling of the video-viewing situation constituted plain error (since he had not objected at trial or raised it as error in a post-trial motion).7 In addressing the defendant’s arguments, the Illinois Appellate Court cited to a number of decisions, including People v. Lewis,8 People v. Johnson,9 and People v. Rouse.10 In each of those cases, the appellate court found no prejudice to the Defendant from the in-court video viewing of a video previously admitted into evidence, and therefore no plain error.11 Particularly, the appellate court identified two specific factors common to the prior case law that precluded a finding of error: (1) the third parties present during the jury’s viewing were instructed not to communicate with the jurors, and in fact did not do so; and (2) after reviewing the video, the jurors returned to the jury room where they resumed “private and unfettered deliberations.”12 Despite these factors, the appellate court in Hollahan found that the presence of outsiders during the viewing “clearly inhibited the jurors’ deliberations and restrained their freedom of expression and action.”13 Expounding on this theory, the appellate court stated that the presence of these parties during jury deliberations is “inherently intimidating to jurors…” and “would almost certainly have inhibited their deliberations while the video was being played.14 Further, the Hollahan appellate court reasoned that the trial judge’s statement to the jurors that no one was “to say a word” specifically “precluded the jurors from engaging in any deliberations while the video was being shown and likely limited their ability to focus sufficiently on the particular portions of the video that gave them concern.”15 With these findings in mind, the Third District appellate panel in Hollahan held that the prior contrary precedent in Lewis, Johnson, and Rouse was

wrongly decided, and therefore it not-altogether-politely declined to follow those cases.16 The key to the Hollahan appellate court’s determination that the presence of outsiders chilled the jurors’ deliberations was an underlying assumption that they were deliberating at all times during the viewing of the video. As part of its analysis, the Third District stated its position in no uncertain terms: “the jury should be allowed to view any…evidence in private because the viewing constitutes a part of the jury’s deliberations.”17 But the Illinois Supreme Court was not so quick to accept that key premise.

Upon reviewing the Third District’s reasoning, the Illinois Supreme Court in Hollahan specifically found that there was no error whatsoever, much less structural error, in the trial court’s video-viewing procedure for the jurors. The high court explained its conclusion as follows: “Defendant assumes that ‘deliberations’ were ongoing when the court brought the jurors back into the courtroom and allowed them another viewing of the video in the presence of non-jurors…. [W]e reject, specifically, the notion that deliberations once begun cannot be suspended by the trial court.”18 As support for this ruling, the Supreme Court identified a number of instances when a trial court may suspend jury deliberations, such as the issuance of supplemental instructions or sending jurors home for the night. The Hollahan court also notably cited to Ill. Sup. Ct. Rule 436,19 which, among other things, allows jurors to separate temporarily overnight. (Author’s Note: Oh, look! Chuck and Alex predicted this in their previous article!).20 The high court then explained the relevance of Rule 436 in the context of Hollahan: “Obviously, the process of jury deliberation does not continue when the individual jurors are separated and at home with their families. We believe it is appropriate, in this context, to make clear that ‘jury deliberation’ is not some uncontrollable chain reaction–as defendant would have it–that, once set in motion, is beyond the power of the trial court to suspend, control, and circumscribe as the court reasonably sees fit in the exercise of its discretion.”21 The Supreme Court therefore held that there was no “chilling” of the jurors’ deliberation, because they were not actually deliberating during the time the

I have instructed everyone to not say a word and we will play the video for you.

5 6 7 8 9 10 11 12 13

Id. Id. Id. at ¶ 5.

People v. Lewis 2019 IL App (4th) 150637.

People v. Johnson 2015 IL App (3d) 130610).

People v. Rouse, 2014 IL App (1st) 121462).

Hollahan, 2020 IL 125091, ¶ 5.

Id. at ¶ 6.

Hollahan, 2019 IL App (3d) 150556 ¶ 21, rev’d by 2020 IL 125091.

14 Id. 15 Id. at ¶ 22.

16 Id. at ¶ 23.

17 Id. at ¶ 28 (emphasis added) 18 Hollahan, 2020 IL 125091, ¶¶24-25 19 Id. at ¶ 25.

20 See supra, note 1, at p 21.

21 Hollahan, 2020 IL 125091, ¶ 25.

January 2021

13

other parties were present, and thus there was no deliberation to chill. The Hollahan court also concluded that “deliberation,” by definition, is the “communicative interchange” involved in discussing the case. Since there was no communication taking place during the watching of the video, then it logically follows that there was no deliberation taking place.

It is noteworthy that neither the Illinois Appellate Court nor the Illinois Supreme Court decision focused on the fact that the trial judge advised the jurors to “stop deliberating” before they viewed the video. Your humble authors respectfully suggest that this is the best practice for in-court video viewing, so that the absence of delibera-

tion during such times can be documented for the record.

In People v Matthews, the Fourth District Appellate Court declined to decide whether the process of allowing a jury’s video-viewing with others present in the courtroom amounted to structural error. Instead, the Fourth District found that “such a determination is best left to our supreme court.”22 In Hollahan, the Illinois Supreme Court has accepted the Fourth District’s invitation to do exactly that and has thereby conclusively determined there is no error in this practice.

Hopefully, the Supreme Court’s holding will bring this heated appellate controversy to an abrupt end.

continued from page 10

Affirmed in part, reversed in part, and remanded.

People v. Foster Appellate Court of Illinois, Second District, February 25, 2020, 2020 IL App (2d) 170683

Holding: The Appellate Court, Zenoff, J., held that evidence was sufficient to prove that defendant was in actual physical control of truck to support conviction for driving while under influence of alcohol.

Affirmed. ____________________________________________ People v. Figueroa Appellate Court of Illinois, Second District, February 27, 2020, 2020 IL App (2d) 160650 Background: Defendant was convicted in the Circuit Court, Boone County, C. Robert Tobin, J., of three counts of first-degree murder, two counts of attempted firstdegree murder, unlawful possession of a firearm by a street gang member, and mob action. Defendant appealed.

Holdings: The Appellate Court, Zenoff, J., held that: 1. Trial court did not err in granting State’s motions to grant witnesses use immunity that met procedural and substantive requirements; 2. Defendant failed to preserve his argument that trial court improperly restricted his ability to effectively cross-examine witnesses regarding use immunity; 3. Trial counsel did not provide ineffective assistance; 4. State failed to introduce evidence that defendant belonged to a “street gang” that was engaged in a “course or pattern of criminal activity,” as required to support a charge of unlawful possession of a firearm by a street gang member; 5. Defendant’s conviction of unlawful possession of a firearm by a street gang member would be reduced to aggravated unlawful use of a weapon; and 6. Record was insufficient to allow appellate review of defendant’s claim that aggregate 60-year sentence was unconstitutional as applied under the proportional penalties clause.

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22 People v Matthews, 2017 IL App (4th) 150911, ¶ 44.

Background: Defendant was convicted in the Circuit Court, Kane County, James C. Hallock, J., four counts of predatory criminal sexual assault of a child under 13 years of age and two counts of aggravated criminal sexual abuse of a victim under 13 years of age. Defendant appealed.

Holdings: The Appellate Court, Zenoff, J., held that: 1. Proper standard of review in reviewing defendant’s challenge to the sufficiency of the evidence was whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; 2. Testimony of child victim and witnesses she spoke to were admissible under hearsay exception statute for out-of-court statements of child victims of sexual assault; 3. Evidence sufficiently supported finding that defendant used his finger to intrude, however slightly, into child victim’s vagina on more than one occasion; 4. Evidence sufficiently supported finding that defendant made actual contact with child victim’s vagina using a pen and that he did so more than one time; 5. Trial court’s failure to recite the principles enumerated in rule governing voir dire examination and to ask seated juror whether she understood and accepted the principles was clear error under plain error analysis; and 6. Evidence at trial was closely balanced, and thus trial court’s voir dire error was reversible plain error.

Reversed and remanded.

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Criminal Orders of Protection and Deleon

B

BY KIMBERLY J. FURRER

oth civil and criminal law practitioners are well versed in the world of civil orders of protection. Unfortunately, civil orders of protection may at times become necessary in a myriad of cases.

They can be relevant to family law cases when viodetailed in the Illinois Domestic Violence Act.1 Generally speaking, the proceedings for obtaining and lence, harassment, or abuse is perpetrated by a spouse, litigating orders of protection follow the Illinois Rules of co-parent, or other family or household member, in criminal cases involving violence, sexual abuse or stalking, Civil Procedure. However, civil orders of protection contain some elements unique to these types of proceedings. as well as in relation to other instances of harassment The clearest difference between orders of protection and between non-family members such as neighbor disputes, other civil proceedings is that emergency orders of protecschool-mates and co-workers, and the like. tion can be heard on an ex parte basis, without providing Previously, when abuse occurred, the victim’s atnotice to the Respondent. Additionaltorneys would petition the Court for ly, proceedings on orders of protection a civil order of protection, barring Kimberly Furare expedited. Continuances will only the other party from contacting the rer is a family be granted for good cause and are victim, perpetuating the abuse, and if law attorney at Schiller much shorter in duration. applicable, barring contact with any DuCanto & Despite these streamlined meachildren that may also be impacted by Fleck LLP. She sures, as practitioners can attest, in the abuse. In civil orders of protecis a passionate many cases, order of protection litigation, the Court also has the ability to advocate for tion can become very protracted. This order additional remedies including her clients and believes litigation can take many court appearexclusive possession of a residence or strongly in ances to finalize, involves extensive other property, financial remedies, working with testimony of the victim, subjects the counseling, setting parenting time, her clients directly to evaluate their victim to cross-examination by his or allocating parental responsibilities, goals and develop clear strategies to and even custody of animals. All remobtain them. edies for civil orders of protection are 1

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750 ILCS 60/214.

her abuser, can include significant use of evidence such as photographs, videos, text-messages and the like, may at times involve multiple witnesses, and almost always can be a traumatic event in and of itself. When other litigation is also pending between the parties, such as family law litigation, order of protection proceedings generally exacerbate these complexities as overlapping issues become ripe for further litigation, including: the payment of support, limitations on parenting time, and access and allocation of jointly held property, among others.

For decades, this civil method for obtaining an order of protection was the exclusive option for victims of abuse. However, a new type of order of protection has been recently enacted by the Illinois legislature. Enacted and effective January 1, 2018, Article 112A of the Illinois Code of Criminal Procedure provides for a criminal order of protection. As stated in the text of the statute, the purpose of the new criminal order of protection is to “minimize the trauma and inconvenience associated with attending separate and multiple civil court proceedings to obtain protective orders.” 2 Criminal orders of protection under Article 112A are only available in cases in which the abuser is charged with a pending criminal case. They can be entered in conjunction with domestic violence cases, sexual offenses and stalking offenses.3 The petition for a criminal order of protection can either be entered by the victim personally, by a parent on behalf of a minor victim, or the by the State’s Attorney.4 These petitions are filed directly with the criminal case; however, victims may still obtain their own legal representation with respect to the order of protection should they so desire.5 The most significant benefit to filing an order of protection in conjunction with a criminal case rather than as a separate civil proceeding, is that the entry of the order is mandatory in cases in which prima facie evidence exists that a crime involving domestic violence, sexual offenses or stalking has occurred.6 Per the statute, this prima facie evidence is simply the existence of a charging implement including an indictment, information or complaint.7 Therefore, in granting a criminal order of protection, the Court only needs to review the Court file and charging

document to determine whether this prima facie evidence exists. As was intended in the spirit of the statute, victims do not testify in these proceedings and are not subject to cross-examination.

The remedies available to the Petitioner in a criminal order of protection are largely identical to those available to Petitioners under the Illinois Domestic Violence Act. These remedies are detailed in 725 ILCS 112A-13. Any violation of a criminal order of protection operates under the same legal principles of the violation of a civil order of protection. If a party violates either a criminal or civil order of protection, they are subject to criminal charges under 720 ILCS 5/12-3.4.

The only significant difference in the operation of the orders is with respect to duration. A criminal order of protection follows the criminal case. Therefore, if a criminal order of protection is entered during pre-trial release (prior to a finding of guilty or acquittal), the order shall remain in effect until the criminal case is resolved.

Therefore, if the charges are dismissed, the order of protection is likewise terminated.8 However, if the Respondent is found guilty either by plea or by trial, the order of protection shall continue for two years after that final disposition is entered. In cases of imprisonment, the order shall continue for two years following the Respondent’s release from parole or other supervised release.9 Given that criminal orders of protection are not subject to a hearing, the only way in which a Respondent may combat or challenge a criminal order of protection under Article 112A is to present evidence of a meritorious defense.10 In this case a Respondent must file a written notice alleging the meritorious defense which must be verified and supported by an affidavit.11 Once this notice is filed, the Court will set the meritorious defense for hearing. It is only after a hearing, and presentation of evidence of this meritorious defense that the Court may decide not to issue the protective order if the Court finds that meritorious defense exists by a preponderance of the evidence.12 When Article 112A was enacted in 2018, there was much discussion within the legal community regarding the constitutionality of this statute. Specifically, opponents of the legislation were concerned that the prima

2 3 4 5 6 7

8 9 10 11 12

Any violation of a criminal order of protection operates under the same legal principles of the violation of a civil order of protection.

725 ILCS 5/112A-1.5.

725 ILCS 5/112A-2.5.

725 ILCS 5/112A-4.5.

725 ILCS 5/112A-4.5(d-5).

725 ILCS 5/112A-11.5.

725 ILCS 5/112A-11.5(a).

725 ILCS 5/112A-20.

725 ILCS 5/112A-20(b).

725 ILCS 5/112A-11.5(a-5).

725 ILCS 5/112A-11.5(a-5).

725 ILCS 5/112A-11.5(a-5).

January 2021

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facie nature of the issuance of these orders violates the due process rights of the Respondent (right to confrontation and cross-examination, protection against self-incrimination), as well as shifts the burden from the Petitioner to the Respondent. These issues were recently addressed by the Illinois Supreme Court in People v.

Deleon, 2020 IL 124744.

In Deleon, the Defendant/Respondent was charged with four counts of criminal sexual assault.13 The State’s Attorney in that case filed a petition for order of protection pursuant to 725 ILCS 5/112A.14 The circuit court orally pronounced that Section 112A-11.5 was unconstitutional both on its face and as applied in that particular case.15 The circuit court found that not requiring the victim to testify was a violation of due process, and requiring the defendant to present evidence of a meritorious defense violates the defendant’s right against self-incrimination.16 Additionally, the circuit court found that “the statute improperly shifts the burden of persuasion to the defendant.”17 Earlier this year, the Illinois Supreme Court reversed the findings of the circuit court in Deleon. In reaching this conclusion, the Court relied upon due process analyses from United States Supreme Court cases: Medina v. California,18 and Mathews v. Eldridge19.

As described by the Court in Deleon, Medina stands for the proposition that criminal proceedings are within the power of the State to regulate, and the Court will “generally [decline] to find a due process violation unless the procedure in question ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”20 The Court in Deleon applied this proposition to the prima facie issuance of criminal orders of protection in Article 112A. The Deleon Court focused on the fact that the determination of probable cause by “a neutral and disinterested party” could satisfy constitutional protections as it did in Gerstein v. Pugh.21 In Gerstein, the Court examined and balanced a Defendant’s right to liberty and the State’s duty to control crime.22 The Gerstein Court held that the fourth amendment requires a judicial determination of probably cause as a prerequisite to restraint of liberty.23 The Court in Deleon used similar reasoning. The Deleon Court held that since an independent determination of probable cause is sufficient to physically detail a Defendant in pre-trial proceedings, likewise it must be a sufficient safeguard to enter an order of protection which is “unquestionably a 13 Deleon, 2020 IL 124744, ¶3.

14 Id. 15 Id. at ¶4.

16 Id. 17 Id. 18 505 U.S. 437.

19 424 U.S. 319.

20 Deleon at ¶14, citing Medina, 505 U.S. 437, 445.

21 Deleon at ¶16.

22 Gerstein v. Pugh, 420 U.S. 103, 112.

23 Id. at 114.

18

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less restrictive constraint on liberty.”24 The second due process principal used by the Deleon Court was from the Mathews case. In Mathews, the due process analysis hinges upon the balance of interests at play. In balancing interests, the Deleon Court found that the government has a substantial interest in protecting victims and minimizing the number of times the “victim is subject to adversarial proceedings prior to trial.”25 Comparatively, the Defendant “does not have a significant interest in associating with his [or her] alleged victim.”26 Ultimately, the Deleon Court found that the “conditions of the no-contact order were relatively limited and largely identical to the restraints imposed as conditions of defendant’s pretrial bond release.”27 The Court also did not find that the procedures in Article 112A violated the principles of confrontation and cross-examination. Specifically, the Court relied on the fact that criminal orders of protection are not a question of whether a criminal defendant is “guilty beyond a reasonable doubt” of the charge faced; and therefore, that type of adversarial process is “far less useful.”28 Finally, the Illinois Supreme Court held that “meritorious defense” remedy and procedure does not constitute burden shifting.29 On this point, the Court held that while a Respondent may present evidence of a meritorious defense, he is not forced or compelled to do so.30 Because the choice to present evidence of a meritorious defense is entirely voluntary and not compulsory, it does not violate Respondent’s constitutional protection against self-incrimination.31 Based upon the Court’s holding in Deleon, it appears that criminal orders of protection are here to stay. While these orders may not be applicable in every case of abuse, they are certainly a substantial asset for victims where the defendant’s conduct constituted a crime and he or she was charged with a criminal offense. Additionally, victims’ attorneys and other civil counsel may also find that these orders are significant tools in their civil litigation tool box. For example, if a party in a family law case is charged with domestic battery or another qualifying offense under Article 112A, it may be prudent to explore the issuance of a criminal order of protection rather than seek a civil order in conjunction with the pending civil litigation. By utilizing a criminal order, civil litigators can avoid the trauma of their clients confronting their abusers and testifying in Court, as well as remove the litigation of the order itself from the civil proceedings, narrowing the issues before the civil court and simplifying those proceedings.

24 Deleon at ¶ 20.

25 Deleon at ¶ 29.

26 Id. at ¶ 31.

27 Id. at ¶ 33.

28 Deleon at ¶ 34.

29 Deleon at ¶ 39.

30 Id. 31 Id.

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The Top Five Causes of Action Related to Wills and Trusts and How to Defend Against Them

BY MATTHEW T. CARUSO AND JAMES L. RYAN

I

t is no secret that America’s population is getting older. In a recent housing study, researchers from Harvard noted that the number of American households headed by a person over the age of 80 has risen 71 percent in the last 25 years.1

The Baby Boomers have started to retire and will continue to do so in record numbers. America’s older generations have amassed large sums of wealth that will be transferred to Matthew T. younger generations in the decades to Caruso is a come. Estate planners utilize wills and partner at trusts as instruments to facilitate these the law firm transfers of wealth, but simply preof Roberts & Caruso and paring a will or a trust is no guarantee practices out that an effective transfer of wealth will of the firm’s take place to an intended beneficiary.

Wheaton Whenever there is a transfer of money, office. there is a risk that litigation over the transfer may result.

James L. Ryan What does litigation involving is an associate estates and trusts look like? How do at the law you defend a party to that litigation? firm of Are there any drafting techniques that Roberts & Caruso in estate planners can utilize to prevent Wheaton. or deter future litigation? This article 1

1

Harvard University Joint Center on Housing Studies. Housing for Older Adults, 2018 ed., pg. 2.

20 The Docket

answers these questions by describing the top five most common causes of action that arise in contested trusts and estates and common defenses to them. This article also offers some techniques to avoid future litigation over the estate plans.

CAUSE OF ACTION #1: UNDUE INFLUENCE In the authors’ experience, undue influence is the most common cause of action used to attack an estate plan when a deceased parent leaves assets in a will or trust contrary to the expectation that all children must be treated equally. When one child is disinherited or when one child receives substantially more assets under the terms of a parent’s will than her siblings, an undue influence cause of action is one way an unhappy child can try to set aside the will and get her “fair share” of “what Dad wanted”.

The Illinois Pattern Jury Instructions defines undue influence as “influence exerted at any time upon the decedent which causes him to make a disposition of his property that is not his free and voluntary act.”2 There are two ways to prove undue influence under Illinois law.3 The first way is to prove undue influence is through proof of specific conduct constituting the undue influence, such as conduct that is excessive, improper, or illegal.4 Isolation is just one example of specific conduct showing influence that is excessive. Proof of misrepresentations or concealment of material facts can also establish undue influence.5 The second way to prove undue influence is through a legal presumption of fraud that arises whenever a fiduciary participated in the preparation or execution of a will or trust that provides the fiduciary with a disproportionate share of the estate or trust.6 For example, if a child is acting as power of attorney for an elderly parent and arranges for an attorney to change the parent’s estate plan that benefit that child, the presumption of fraud arises. When an adult child calls an estate planning law firm on behalf of a parent, it is a good practice to ask: “why are you on the phone with us instead of your mother?’

An estate planning attorney should keep careful records of his client communications to deter future undue influence claims. In a will contest, there is no attorney-client privilege between the decedent and the drafting attorney.7 The drafting attorney is almost always the critical witness at trial. Thus, a careful attorney should write out detailed, contemporaneous notes of all discussions with the client. Potential influencers should not be in the room when the client tells the attorney of his intentions. The first thing a plaintiff does in an undue influence case is to subpoena the records of the attorney who wrote the estate plan and tries to figure out who was at the attorney’s office with the client and who arranged the appointments. If the client states his intentions are something that someone might challenge later, such as favoring one child over another, then a careful attorney should videotape those conversations with the client’s consent. A video of a signing ceremony during which the lawyer asks open ended

questions and the client provides explanations for the decisions that he made in his estate plan can become powerful evidence of the client’s wishes in the event of a challenge.

A lawyer defending an undue influence case should use discovery to determine what is “undue” about the alleged influence, particularly in cases where a husband or a wife is the alleged undue influencer, because it is expected that a spouse will influence a spouse, and there is nothing “undue” about a spouse influencing a spouse’s estate planning decisions absent some other improper conduct such as misrepresentation.8 The lawyer defending undue influence should get the file from the attorney who wrote the will or trust and contact disinterested witnesses who knew the decedent and the alleged influencer. Those disinterested witnesses may provide excellent background on why the decedent made the choices that he did.

When an adult child calls an estate planning law firm on behalf of a parent, it is a good practice to ask: “why are you on the phone with us instead of your mother?”

2 Illinois Pattern Jury Instruction No. 200.09.

3 Illinois Pattern Jury Instruction No. 200.04.

4 Estate of Glogovsek, 248 Ill.App.3d 784 (1st Dist. 1993).

5 Estate of Hoover, 155 Ill.2d 402 (1993).

6 Illinois Pattern Jury Instruction No. 200.04.

7 See e.g. Adler v. Greenfield, 2013 IL App (1st) 121066, ¶62.

CAUSE OF ACTION #2: LACK OF TESTAMENTARY CAPACITY. When a person changes his estate plan toward the end of his life, a typical challenge is that the person lacked testamentary capacity to make a will. The Illinois Pattern Jury Instructions provide the elements to a lack of testamentary capacity cause of action. “A person does not have testamentary capacity to make a will if, at the time he executes the document, he does not have: (1) The ability to know the nature and extent of his property; (2) The ability to know the natural objects of his bounty; or (3) The ability to make a disposition of his property in accordance with some plan formed in his mind.” 9 Please note that testamentary capacity is not the capacity to transact ordinary business. A person who has been declared disabled by a court may have testamentary capacity if he has the abilities set forth above. In fact, the Probate Act contains specific procedures to be followed when a disabled person wants to write a will.

Lack of testamentary capacity is also not a medical diagnosis. Thus, medical diagnoses like Dementia or Alzheimer’s disease must be linked to the abilities set forth above in order to be probative at trial. A great way to establish testamentary capacity at the time of signing is to have the client complete a neuropsychological evaluation with a qualified professional who prepares a written report linking the client’s cognitive functioning with

8 See DeHart v. DeHart, 2013 IL 114137.

9 Illinois Pattern Jury Instructions, No. 200.05.

January 2021

21

the specific elements of testamentary capacity. Again, a videotaped signing ceremony with open ended questions and detailed responses can go a long way to establish a valid defense. However, when making a video at the signing ceremony, it is crucial to ask the three “capacity questions” referenced above; “who are your children?”, “how much money do you have?”, “what is your plan for distributing your assets in your will?” It is not helpful to simply ask, “is this your will?” on the video. The best evidence of capacity is the testator himself answering the capacity questions on a video at a time that he was alleged to have lacked capacity to sign a will.

Defending a challenge of lack of capacity often requires hiring an expert, such as a psychologist or a psychiatrist, in cognitive impairments of the elderly. It is often the case that the attorney bringing a challenge against a will based on lack of capacity does not understand the concept of capacity. The authors have seen complaints challenging wills due to lack of capacity that allege simply that the testator had “dementia”, and the attorney might embellish that word to “severe dementia” using poetic license rather than medical evidence to assert that the testator lacked capacity because the person had the word “dementia” in his medical records. However, a person with dementia can have capacity to sign estate planning documents, particularly if the dementia was caused by a temporary condition such as a blow to the head. An expert is crucial in these cases in determining whether the medical records indicate a lack of capacity at the time of the signing, which is the relevant time that capacity is required.

CAUSE OF ACTION #3: ACCOUNTING. The first two causes of action mentioned above involve challenges to the estate planning documents themselves.

The next two causes of actions involve the execution of that plan by a fiduciary. A cause of action for accounting is generally used to compel a person who is in control of the decedent’s money to disclose how that person has used the decedent’s money. There are several statutes that require accountings. The Trust and Trustees Act requires annual accountings to any person then entitled to receive income or principal from a trust.10 The Probate Act requires annual accountings of estate assets to all interested persons.11 The Power of Attorney Act requires an agent to produce an accounting of the assets under his control as power of attorney within 21 days of a request of any interested person to a principal’s estate.12 Illinois courts also recognize a cause of action for an equitable accounting if there is an absence of an adequate remedy at law and one of the following: (1) breach of fiduciary duty, (2) a need for discovery, (3) fraud, or (4) the existence of mutual accounts which are of a complex nature.13 10 11 12 13

760 ILCS 5/11(a).

755 ILCS 5/24-1.

755 ILCS 40/2-7(c)(1).

People ex rel. Hartigan v. Candy Club, 149 Ill.App.3d 498, 500-01 (1st Dist. 1986).

22 The Docket

When a client is served with a complaint for an accounting, the client is usually serving in a fiduciary capacity with a duty to account. In most circumstances, arguing that a duty to account does not exist is not a worthwhile endeavor. Thus, the best way to insulate a client named as a defendant in an accounting cause of action from potential liability is to outsource the preparation of the accounting to a professional CPA. That is particularly the case when a client walks in the office with a box full of receipts and bank statements and says he is being sued for an accounting. Because accountings are administrative expenses, the CPA gets paid out of the trust or estate funds for performing the accounting for the client. The client becomes protected from claims that the accounting is performed incorrectly in terms of math or formatting. Using a professional CPA is an effective way to assure a sibling that things are being handled correctly. However, if the sibling persists in pursuing an accounting cause of action after a CPA sends the sibling a full accounting based on supporting documentation, then the CPA would become the star witness to prove up the accuracy of the accounting at a hearing. If the numbers add up and have supporting documentation for most things, at least the CPA can narrow the issues to the items that are not supported by documentation such as receipts.

CAUSE OF ACTION #4: BREACH OF FIDUCIARY DUTY. When a beneficiary believes that the person in charge of the decedent’s money has mishandled the decedent’s money, the most common cause of action to remedy that wrong is breach of fiduciary duty. To state a claim for breach of fiduciary duty, it must be alleged that: (1) a fiduciary duty exists, (2) the duty was breached, and (3) the breach proximately caused damages.14 This cause of action is most commonly used because the proof for the plaintiff’s side is relatively easy. An executor of a will and a trustee of a trust owe fiduciary duties as a matter of law. Thus, the first element is an easy hurdle to clear. Moreover, the law imposes a legal presumption of fraud in all self-dealing transactions by a fiduciary.15 Thus, the plaintiff simply must point to a transaction in which the trustee or executor benefits to meet its burden of proof. These transactions are generally described on an accounting or on a bank statement. Once a self-dealing transaction is identified, the burden of proof shifts to the fiduciary to establish by clear and convincing evidence that the transaction was fair and did not result from undue influence over the principal.16 Presumptively fraudulent transactions occur frequently in the course of estate and trust administration.

For example, a fiduciary may reimburse himself for expenses he advanced. The fiduciary may forgive pre-existing loans either to himself or to a relative; the fiduciary may compensate himself for services rendered, or the fi14 Lawlor v. N. Am. Corp. of Illinois, 2012 IL 112530, ¶69.

15 Estate of Alford v. Shelton, 2017 IL 12119, ¶23.

16 Id.

duciary may take the proceeds of a “convenience account” with joint account features that the fiduciary had been using to pay for his parents’ living expenses. If a disgruntled sibling complains about the fiduciary’s actions, then the burden of proof will be on the fiduciary to overcome the presumption of fraud for each one of these types of presumptively fraudulent transactions.

A good estate plan will build in a defense for each of these common, but presumptively fraudulent transactions. For example, a well-written estate plan may require a trustee to keep receipts for expenses and obtain multiple quotes for large dollar expenses. Practitioners should include language in a trust that directs a trustee to forgive all unpaid loans prior to death, unless the loan is of a large amount or reflected in a promissory note. With respect to compensation for services rendered, it is recommended to include language specifying that a trustee is entitled to reasonable compensation and provide a formula if necessary.

Whenever a client says that he added a child as an authorized signer on a bank account, one should include a “Convenience Account Designation” or a “Gifting Document” form in the client’s estate planning documents to instruct the fiduciary of the client’s wishes for that account. These planning techniques can go a long way to help accomplish the client’s wishes and minimize the risk to the person trusted to effectuate the client’s wishes.

CAUSE OF ACTION #5: PETITION FOR INSTRUCTIONS. Sometimes, it is simply not possible to stop a disagreeable, grieving sibling from pursuing litigation over their deceased parent’s estate and trust. In those circumstances, it is often better for a trustee or executor to initiate the litigation through the filing of a petition for instructions.

A petition for instructions simply requires a bona fide dispute as to the true meaning and intent of the trust instrument or as to the particular course which a trustee ought to pursue.17 Proving a bona fide dispute can be easy when considering that disagreeable siblings tend to show their displeasure in vitriolic e-mails that span multiple pages that could be printed and attached to a complaint.

Petitions for instructions tend to lead to court orders directing a trustee or executor to take certain actions.

Court orders add a layer of protection for a trustee confronting an unhappy beneficiary. In the meantime, a trustee is entitled to maintain the lawsuit at the expense of the trust estate. Thus, there is no good reason for a trustee to ever guess about what to do or to put himself at risk of breach of fiduciary duty for taking steps that a beneficiary might challenge.

Keeping in mind the potential causes of action available to attack wills and trusts as you draft the estate planning documents will serve the interests of your client and will make life easier for you as the attorney if you ever receive that subpoena.

Contact the LCBA office for pricing.

847-244-3143

FREE CLE DISCOUNTED CLE BUSINESS MEETINGS LAWYER REFERRAL SEARVICE COMMITTEE MEMBERSHIP THE DOCKET & WEEKLY E-NEWS

Do you have a speaker idea or suggestion for our business meetings?

We would like to hear from you!

Send your ideas to: dale@lakebar.org

17 Kaull v. Kaull, 2014 IL App (2nd) 130175, ¶76.

January 2021

23

Foundation & Committee Minutes LAKE COUNTY BAR FOUNDATION BOARD OF TRUSTEES MEETING OCTOBER 20, 2020 IN ATTENDANCE:

BY ZOOM: Joann Fratianni Perry Smith Amy Lonergan David Gordon David Stepanich Nick Riewer Rick Lesser Jeffrey Berman Keith Grant Shyama Parikh Joe Morrison Kristie Fingerhut Melanie Rummel Hon. Fred Foreman (Ret.) Joe McHugh

BY PHONE: Mike Ori Nandia Black Also in attendance: Dale Perrin, Executive Director, LCBA. I. CALL TO ORDER: The Meeting was called to order by President Nick Riewer at 4:05 p.m.

II. APPROVAL OF MINUTES: The Minutes of the Meeting of September 15, 2020 were presented for approval. Motion to approve was made

by Nandia Black and seconded by Rick Lesser.

Motion carried.

III. TREASURER’S REPORT: A. STATUS AND

24 The Docket

BALANCES OF LCBF ACCOUNTS: The Dues Check-Off has resulted in more donations. We have $5,000 in committed sponsorships for our Art With a Heart Fundraiser. Canvas sales and the dues checkoff have resulted in $3,251.10 in income.

B. WARRANT/APPROVAL OF EXPENSES PAID: The Board was presented with $19,293.62 in expenses for September 2020 which require approval.

Motion to approve the expenses made by Amy Lonergan and seconded by David Gordon.

Motion carried.

IV. CONTINUING BUSINESS: A. PROPERTY TAX EXEMPTION: We are waiting to hear from the Illinois Department of Revenue if we will be granted tax exempt status. It has been six weeks and there is no timeframe for their decision. We still have to make two tax payments next year even if the taxexempt status is granted.

B. ON-LINE ART AUCTION: The LCBA website has a link to the artwork we have received so far. The Artwork is due on October 26 and on-line bidding begins on November 2 and runs thru November 20. The minimum bid is for $25 for each piece

of artwork and we are not setting a top dollar figure for the bidding. The Dandelion Art Gallery has some of our artwork posted on their website.

C. LCBF BY-LAWS COMMITTEE: The By-Laws Committee will be discussing proposed revisions for Sections 7, 8, 9 and 10 at the next bylaws meeting on October 26. It should be noted that the “Purpose” Article will be reviewed at the end as the Committee felt that would require some special attention.

V. NEW BUSINESS: A. REPAIR COSTS: A proposal was received from Apollo Construction for repair of the back door in the amount of $2,350.

Motion made by Perry Smith and seconded

by Melanie Rummel to proceed with replacement of the steel exit door and frame. Motion carried.

There were several proposals for repair of the roof and the flashing.

There is some dispute as to whether or not this will require a complete tear off of the existing roof.

There is also some dispute between the bids as to how long the existing roof may last. The Board decided to obtain another estimate or bid from another roofer including a time frame on the existing roof.

VI. ADJOURNMENT: Motion to adjourn was

made by Jeff Berman and seconded by David Gordon. Motion carried and the Meeting adjourned at 4:32 p.m.

Respectfully submitted, Joann M. Fratianni Secretary _______________________ DECEMBER 9, 2020 CIVIL TRIAL & APPEALS COMMITTEE MEETING VIA ZOOM Meeting commenced at 4:04 p.m.

TOPICS OF DISCUSSION: 1. SUPREME COURT RULE 45 (Remote Jury Selection) – Presented by Terry Mueller • Jury summons are still be issued in Lake County • Recommendation and guidance to conduct jury selection remotely • Serving safely as in person jurors (masks, screening checks, temperature checks, social distancing, spacing jurors seating 6 feet apart; limiting gallery size) • Questions and comments regarding remote jury selection mandate - Left as an option for the attorneys in Lake County 2. UPDATE ON JURY TRIAL IN LAKE COUNTY - JUDGE HOFFMAN • Final pre-trial moved up one week to discuss additional jury selection options (6 vs. 12 person;

method of voir dire (remote vs. in person) courtroom selection based on size of jury and parties etc.)

• Recommendation by the circuit judges, in consultation with the health department to not run jury trials in January 2021 3. MARTIN MEHAN FROM GELCH & ASSOCIATES – Represented Plaintiff in small claims trial before Judge Berrones on October 5th.

• 1 day trial – had a verdict after an hour of deliberation • Jurors felt safe; kept distancing and had protective measures (glass screens separating witness from court reporter and from judge) • Draw backs: cannot gauge jurors’ facial expressions; difficult to observe all jurors while speaking due to social distancing; had to stand in one place for opening statement and closing argument.

• Able to remove mask while speaking; examining witness • Jurors deliberated in a separate courtroom.

Meeting opened for questions, comments, ideas, and thoughts to save the world. Meeting adjourned at 4:45 p.m.

Next meeting will be January 14, 2021 via Zoom. _______________________

FAMILY LAW ADVISORY GROUP MINUTES DECEMBER 9, 2020 I. ATTENDANTS a. Executive Director b. Chair, Vice Chair c. 21 Total Participants II. UPCOMING DATES a. January 13, 2021 FLAG b. January 20, 2021 - Family Law Meeting – speaker? i. D iscussed whether and to what extent we want to continue to have speakers at our Family Law Committee Meetings ii. Generally, agreed to continue with the practice of speakers on a regular (but not every meeting) basis. c. Family Law Holiday Party December 16, 2020 7:30 to 9:00 i. C raig, Greta, Melanie, Gretchen and Jennifer Beeler on subcommittee

V. PROVE UP FORM a. Any other changes?

VI. 606.7 POSITION RESOLUTION VII. NEW BUSINESS a. Members Rappaport and Mazurek presented on creating a comparable program to Cook

County’s brown bags for GALs. Submitted to CLE committee via Shyama. b. Prove-ups limited in last two weeks of the year. c. A thank you note from the membership to the clerks? d. HFS new policies on judgment interest

III. FAMILY LAW SPRING SEMINAR a. Pick a date i. Resolved – April 22 and 23, 2021 1. Afternoon of 22nd 2. Morning of 23rd b. Social Event options were discussed. i. L ooking to utilize lessons learned from AWALC ii. Sponsorships? iii. Tabled until January for further discussion IV. GAL APPLICATIONS DUE

BY DECEMBER 4, 2020 a. Mediation list was circulated today.

January 2021 25

Board of Directors’ Meeting

The

Meeting Minutes

BY KATHARINE S. HATCH SECRETARY

Thursday, October 15, 2020 ACTION ITEMS: 1. Consent Agenda: a. September Minutes: P3 b. September New Members: P6. Motion to Approve Consent Agenda, Motion Seconded, Consent agenda Approved.

2. Treasurer’s report: a. September 2020 Financial Report: P7 Report Discussed in Detail.

OLD BUSINESS: 1. LCBA/LCBF Joint Sub-Committee Update: Meeting to be held 10/19/20 2. Social Media Subcommittee Update: First Meeting of the Social Media Subcommittee is November 4, 2020.

3. Pro-Bono Awards Luncheon Update: Justice Michael Burke guest speaker. Recipient of Wayne Flanigan Award: Michael Strauss.

26 The Docket

Recipient of PSLS Pro Bono Service Award: Deanna Bowen NEW BUSINESS: 1. 2020-2021 Budget Review: Review proposed modifications of the 2020-2021 budget.

Items highlighted have been changed. Red numbers in bubbles are proposed changes.

Previous budget numbers are in parentheses in black.– P17 Budget Discussed in Detail; Motion to Discuss Virtual Seminar Advertising at November Executive Board Meeting, Motion Seconded, Motion Passes. Motion made to Approve Revised Budget, Motion Seconded, Motion Passes.

2. IICLE & Recording of Seminars Prior to CLE’s and Seminars particpants will be informed that the event is recorded.

All CLE presentations

must consult with the CLE committee chairs to ensure the correct procedures are followed.

3. Lake County Update Review: 65 Attendees 4. Candidates Forum Review: 163 Attendees OTHER MATTERS: 1. Committee Updates: Contact your assigned committee chair for a report. Board Laisons gave Committee Updates.

Committee Chair meeting with the LCBA president forthcoming in December.

2. Executive Director Report. Pay Increases for LCBA staff Discussed; Motion to Approve, Motion Seconded, Motion Passes.

Motion to adjourn: Motion to Adjurn made at 1:11 p.m., Motion seconded, Meeting Adjurned.

Next Board Meeting: November 19, 2020

BOARD MEMBERS PRESENT Hon. Patricia Cornell President Joseph Fusz First Vice President Tara Devine Second Vice President Kathleen Curtin Treasurer Katharine S. Hatch Secretary Stephen Rice Past President Thomas A. Pasquesi 2018-2021 Director Dwayne Douglas 2019-2022 Director Daniel Hodgkinson 2019-2022 Director Hon. Jacquelyn Melius 2020-2023 Director Dale A. Perrin Executive Director

Visit the LCBA Website lakebar.org

Monthly

Committee Meetings

DAY

MEETING

LOCATION

TIME

1st Tuesday

Diversity & Community Outreach

Virtual Until Further Notice

12:15-1:15

1st Thursday

Real Estate

VUFN

5:30-6:30

Docket Editorial Committee

VUFN

12:15-1:15

Criminal Law

VUFN

12:15-1:15

1st Thursday (Even Mo.) 2nd Tuesday 2nd Tuesday (Odd Mo.)

Immigration

VUFN

4:30-5:30

2nd Wednesday

Family Law Advisory Group (FLAG)

VUFN

12:00-1:00

2nd Wednesday

Civil Trial and Appeals

VUFN

4:00-5:00

2 Thursday

Young & New Lawyers

VUFN

12:15-1:15

2nd Thursday

Trusts and Estates

VUFN

12:15-1:15

3rd Monday (Odd Mo.)

Solo & Small Firms

VUFN

12:00 noon

3rd Tuesday

Local Government

VUFN

12:15-1:15

3rd Tuesday

LCBF Board of Trustees

VUFN

4:00

Family Law

VUFN

12:00-1:00

LCBA Board of Directors

VUFN

12:00 noon

VUFN

5:30-6:30

VUFN

5:15-6:15

nd

3rd Wednesday 3rd Thursday 3rd Thursday As Needed

Debtor/Creditor Rights Employment Law

• RSVP to a meeting at www.lakebar.org.

• Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143.

• Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis.

Bar

Bulletin Board

OFFICE SPACE FOR RENT Size can vary from 100-1000 square feet Parking Available Beginning 11/1/20 16 N. West Street Waukegan, IL 60085 Call: 847-336-7373 To place an ad or for information on advertising rates, call (847) 244-3143

January 2021 27

Farewell

A

s I write this, my last, article for the Docket I am extremely grateful to have been given the opportunity to lead and manage these two great originations for the past two and a half years.

As many (most) of you have hopefully heard by now, my last day as the Executive Director for both organizations was December 31. By the time you read this I will be a new Project Manager for K2 Construction Consultants Security Screening Group, based in Bethesda, MD. This is complete career change out of the Association Management field where I’ve been for the past 19 years, but it is an opportunity that I couldn’t pass up. I will work mostly from my home in Lake Zurich when not on a job site somewhere in the country or world. So, I hope to still see some or many of you when I’m out and about in Lake County.

28 The Docket

In the

Director’s Chair

This opportunity came about due to the strong connections and relationships I developed many years ago when I was actively involved with and worked for the Junior Chamber of Commerce (also known as the Jaycees). A fellow Jaycee member of the Richardson (TX) Jaycee Chapter I was President of and with whom I had the pleasure of working at the Jaycees national headquarters contacted me out of the blue in late November and informed me that her company was growing and was looking for a Project Manager. She said she remembered my work ethic, organization skills, and ability to manage people and projects so she thought I’d be perfect for this position and decided to contact me.

The point of telling you all this is that it wouldn’t have happened without my involvement with the Jaycees organization. This is one of

the primary benefits and purpose of an organization like the Bar. Yes, the CLE’s you earn from seminars is important and great, but less face it, you can earn CLE’s almost anywhere, anytime online.

But it’s the connections and relationships you develop by being involved and taking advantage of the many activities the organization offers that is the real benefit. This is especially true of young attorneys, or those just entering the profession.

Yes, it takes effort and time. But I guarantee you 100% that it will pay off. Maybe not next week or next year. But in time it will. It is impossible to statically quantify the value in having a glass of wine or a beer with a fellow attorney, or sitting judge, at an after-hour Member Reception, or reception at a seminar, and getting to know them,

BY DALE PERRIN EXECUTIVE DIRECTOR as a person, rather than always in a professional setting. It’s at these events that you get to know their likes and dislikes, quirky or fun facts about them that perhaps you have in common.

Learn about their kids, spouse, aging parents, etc.

These are all things that build connections and lasting friendships which help you succeed. And who knows, 30 years from now one of those connections might call you out of the blue and make you an offer that sets you on a new career path.

Thank you all for the warm welcome two and a half years ago and to the many well wishes I received before I left. It’s been a wonderful, albeit short, ride, and I’ve enjoyed every challenge and minute of it.

Please don’t be a stranger.

Feel free to stay in contact and reach out to me anytime. 847-641-0150.

January 2021 29

300 Grand Avenue, Suite A Waukegan, IL 60085 Tel: 847-244-3143 Fax: 847-244-8259

MEMBER RECEPTION

MEMBER RECEPTION SPONSORSHIP OPPORTUNITIES

LCBA Member Receptions will generally be held on the 4th Thursday of every month.

Your $500 sponsorship includes: • Recognition in advertising before the event and on signage at the event • Reception from 4:30 – 6:30 p.m.

• Complimentary beer and wine. Upgrades available for additional fee.

Contact Dale Perrin at dale@lakebar.org to add your name to a reception.