The Docket - July 2022

THE

DOCKET The Official Publication of the Lake County Bar Association • Vol. 29 • No. 7 • July 2022

2022-23 LCBA President Tara Devine

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Contents THE DOCKET • Vol. 29 • No. 7 • July 2022

FEATURES 6 Diversion and Deflection: Using These Tools in the Justice System to Help Decrease Crime and Relieve Docket Pressure

BY ERIC F. RINEHART

12 The Illinois Supreme Court Makes Clear:“You’ve Got to Have Heart. All You Really Need is Heart”

A publication of the

BY JEFFREY BERMAN 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 Kevin K. McCormick Hon. Raymond J. McKoski Tracy Poulakidas Stephen J. Rice Neal A. Simon Hon. ­­­James K. Simonian Rebecca J. Whitcombe Alex Zagor STAFF Greg Weider Executive Director Jose Gonzalez Assistant Executive Director Nancy Rodriguez Receptionist

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16 Writer’s Workshop: Write as if the Reader Will Be a Human Being

BY STEPHEN J. RICE

18 Turn and Face the Strange Ch-Ch-Changes1 Supreme Court Amends Hearsay Exception Rule

BY HON. CHARLES JOHNSON

COLUMNS 2 President’s Page Spotlight on our JSRC in a Big Election Year for the Judiciary

BY TARA R. DEVINE, PRESIDENT

4 The Chief Judge’s Page Introducing the Restorative Justice Division

BY CHIEF JUDGE MARK L. LEVITT

24 The Meeting Minutes May 10, 2022

BY DANIEL HODGKINSON, SECRETARY

26 In the Director’s Chair 50 LCBA Events to Ponder as we Thank You for Your Membership

BY GREG WEIDER, EXECUTIVE DIRECTOR

LCBA EVENTS IFC Office Rental Pricing 3 Grapevine 5 New LCBA Members 5 Calendar of Events 5 Installation Social Sponsors 10 LCBA Golf Outing 15 Membership Renewal 22 Shred Event 25 Lawyer Referral Service 28 Monthly Committee Meetings BC Member Reception Sponsorship Opportunities

Advertising Rates To place an ad or for information on advertising rates, call (847) 244-3143. Submission deadline: first day of month preceding the month of publication. All submissions must be made in electronic format (high resolution PDF or JPG format at a resolution of 300 pixels per inch or more.) See www.lakebar.org/page/Docket_Advertising The Docket is the official publication of the Lake County Bar Association, 300 Grand Avenue, Suite A, Waukegan, Illinois 60085 (847) 2443143, and is published monthly. Subscriptions for non-members are $45.00 per year.

Reproduction in whole or part without permission is prohibited. The opinions and positions stated in signed material are those of the authors and not necessarily those of the Association or its members.

All submitted manuscripts are considered by the Editorial Board. All letters to the editor and articles are subject to editing. Publications of advertisements is not to be considered as an endorsement of any product or service advertised unless otherwise stated.

Spotlight on our JSRC in a Big Election Year for the Judiciary

W

ith Primary elections just a few weeks ago, I thought it germane to briefly discuss the Lake County Bar Association’s Judicial Retention and

Joseph Fusz President Tara Devine First Vice President Katharine Hatch Second Vice President Kevin Berrill Treasurer Daniel Hodgkinson Secretary Hon. Patricia Cornell Immediate Past President Dwayne Douglas Hon. Jacquelyn Melius Craig Mandell Sarah Raisch Jeffrey O’Kelley Jeremy Harter

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Selection Committee (“JRSC”). When I first became a member of the JRSC in 2019, I had little knowledge about what this role entailed. I sat in the LCBA Board Room with lawyers and judges who I had never met before or had an opportunity to interact with previously.

After brief introductions, it became readily apparent how diverse in the different areas of practice the members were. Local government attorneys, private practicing civil and criminal attorneys, and retired judges. When I first started, attorney David Del Re was the chairperson, and I could tell that he ran a tight ship. I learned very quickly that being a member on this Committee came with significant obligations and responsibilities. When assigned as an investigator to vet a candidate, it meant call-

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President’s Page

ing and following up (and following up and following up) with the candidate’s listed references in order to obtain more information about a candidate’s ethics, experience, and professionalism. The purpose of this Committee is to investigate and conduct interviews for professionals who have submitted to run for the following positions: Associate Judge of the 19th Judicial Circuit, Circuit Court Judge of the 19th Judicial Circuit, and more recently, those candidates in the running for the Illinois Supreme Court’s Second District, as well as for the Illinois Appellate Court’s Second District.

The JRSC has its own bylaws.1 The Committee also votes on any candidate for primary election or general election, or a retention can1

You can find the JRSC’s bylaws at https://www.lakebar. org/page/JSRC_ByLaws

BY TARA R. DEVINE PRESIDENT didate. Based on the office sought, these candidates are classified as “highly recommended,” “recommended,” or “not recommended” (for the nonelected Associate Judge position), or “highly qualified,” “qualified,” or “not qualified” (for all publicly elected positions).

Most recently, as it related to the Illinois Supreme Court race and the Appellate Court vacancy, there was much discussion regarding the candidates and whether it was appropriate for the JSRC to review them. The Committee collectively reasoned that these candidates—and the positions they would fill—would ultimately impact the members of the Lake County Bar Association and the greater citizens of Lake County, which we serve. Therefore, the Committee felt it had a solid justification to vet the candidates. I would note that because some candidates for

the Illinois Supreme Court and the Appellate Court reside outside of Lake County, the JSRC communicated to all candidates that they could appear using Zoom if they were unable to travel to Lake County due to distance or other commitments.

The voting, when it occurs, requires a quorum.

The full JSRC membership roster is typically 16 members. All candidates receive questionnaires to be filled out before the interview, and they receive a notice of evaluation after the interview. After the Committee completes its evaluations, the LCBA publishes them in a local newspaper and in any other manner as determined by the LCBA Board.

There are also provisions within the bylaws which allow a member to disqualify him- or herself from voting on a specific candidate. Some of the criteria

that the Committee uses in its evaluations include a candidate’s integrity, legal knowledge, legal ability, judicial temperament, diligence, professional experience, past professional conduct, financial responsibility, character, common sense, and public service.

These are all factors that the Committee believes are relevant to determining whether a legal professional might successfully (or does successfully, in the case of retention candidates) fill the judicial role.

The importance of the JSRC cannot be stressed enough. The Committee’s purpose is to help inform the public we serve about which candidates are well suited to become a judge in this state. For those candidates who prevail, their future rulings and decisions will directly impact our Lake County community.

There are no words that can fully express the magnitude of our dismay and sorrow regarding the tragic events of the July 4th Highland Park Independence Day Parade. Our thoughts are with the entire Highland Park Community. We extend our deepest condolences to the families impacted by this senseless attack. We offer our gratitude to our law enforcement community for their efforts to bring resolution to this grievous event.

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Grapevine

Elliott Pinsel of Daniels, Long & Pinsel, LLC was recently named president of the Rotary Club of Libertyville The Art Impact Project receives a Lake County Bar Foundation Grant. The Art Impact Project was established with the purpose of helping adolescents in substance abuse recovery through the use and benefits of art making. The organization serves at-risk youth, juveniles coming from incarceration/detention and students identified as having academic and behavioral issues. The Lake County Bar Foundation is pleased to support an organization making such a positive impact in the community.

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Introducing the Restorative Justice Division

H

appy Summer! I hope that each of you is finding some time to get out and enjoy some time outdoors.

From time to time I like using this space to highlight the work being done in the courthouse. This month, I have asked Judges Bishop and Novak to discuss the Restorative Justice Division.

Beginning in January, this new division began combining the Juvenile Division with Specialty Courts. The

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goal was to place added emphasis on the important work being done to enhance services to these client groups. Thanks to Presiding Judge Bishop and Judge Novak for providing this update: In response to the needs of the public and to better serve those with specialized issues, we recently created the Restorative Justice Division, which includes Juvenile Court, as well as the Specialty Courts, Fitness-re-

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Chief Judge’s Page lated cases, and Expungement/Sealing Petitions.

Traditionally, our Juvenile Court, which consists of Abuse/Neglect and Delinquency cases, was under the Family Court umbrella.

As we took a closer look at evidence-based practices across treatment courts, we realized the components of Juvenile Court are very similar to those same key components utilized in our TIM (Therapeutic Intensive Monitoring) Courts.

These courts all emphasize collaboration across different disciplines, whether it involves looking at what is in the best interest of a minor, or how to properly address criminal behavior attributed to addiction or mental illness.

Over two decades, we have seen treatment courts and other community corrections models work to reduce crime and substance use, lead people into recov-

BY CHIEF JUDGE MARK L. LEVITT ery, and reunite families. We are excited to bring those achievements to our Juvenile participants. We envision combining resources across the division to assist families and expand mental health and community services with our court partners.

Our hope is to intervene early, when a parent enters a specialty court or when a minor is found truant or with a curfew violation, and to take a holistic approach to addressing any other issues the family may be facing, including substance use, housing, or other needs.

Bringing all of these courts together will allow us to cross-train judges, probation officers, and attorneys, while providing a more comprehensive and thoughtful approach to problem solving for our court participants.

The Specialty Courts include Mental Health Court, Drug Court, and Veterans Court (VTAC). These

three courts are staffed by Assistant State’s Attorneys, Assistant Public Defenders, the Lake County Health Department, the Department of Veterans Affairs, NICASA, and our own Probation and Psychological Services Division. The TIM courts have weekly staff meetings and conduct court more frequently than traditional courtrooms, meeting weekly. The focus is intensive supervision, utilizing evidence-based practices to provide structure and routine. Upon successful completion, clients enjoy a graduation ceremony with family and friends, where we celebrate the clients’ accomplishments. We recently graduated three veterans from our VTAC program, which makes over 110 graduates since the Veterans Court program began in 2011.

The Specialty Courts have increased contact between the participants and the staff/court, which includes weekly meetings with Probation, weekly random testing for drugs and alcohol, and weekly court sessions. Although COVID challenged us, we developed new ways of assisting our participants through Zoom court sessions and staffing.

Across these courts, the teams transitioned back to in-person court sessions very quickly, based on the collective belief that safe, in-person contact was needed for the benefit of the participants who were confronting isolation and addiction.

The Restorative Justice Division also includes several other court calls: the Fitness call, focusing on defendants for whom a

bona fide doubt has been raised or have been found unfit to stand trial; the STOP call, which provides more intensive monitoring for probationers involved with opioids; the Expungement/Sealing call for those who seek removal of their previous contacts with the criminal justice system; and the Alternative Prosecution Program, designed for those low-risk offenders who have no or very limited previous contact with the criminal justice system.

Visit the LCBA Website lakebar.org

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Calendar of Events Shred Event September 9th

Young & New Lawyers Cubs Game September 16th Member Luncheon Lake County Update September 20th LCBA Member Reception September 22nd Criminal Law Seminar in Milwaukee October 13th & 14th Member Luncheon Pro Bono Awards October 18th

July 2022

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Diversion and Deflection:

Using These Tools in the Justice System to Help Decrease Crime and Relieve Docket Pressure

A

BY ERIC F. RINEHART

s it has for many years, the State’s Attorney’s Office regularly hosts in-house trainings for its attorneys. Recently we hosted one at which I and Kevin Malia, who heads our Rehabilitative Services Division, outlined methods through which the State’s Attorney’s Office (SAO) seeks to deflect or divert appropriate prosecutions.

Someone suggested that the wider Bar might benlocal system believes in diversion (it does), or whether efit from a similar overview, which led to this article. the local players are familiar with the concept (they This article will discuss the philosophy and history of are); it is a question of how much we formalize diverdiversion in Lake County. A second article I will submit sion and how we ensure that this “good” is dispersed will outline the specific eligibility requirements of our to all equally without respect to class, gender, race, or programs. personal connections between attorneys.

We have all had or seen the case in which a defen“Diversion” broadly means a criminal disposition dant does community service, anger that intentionally diverts a defendant management, or some alcohol classfrom a conviction or a formal plea of Eric F. es, and the defense attorney says: guilty in exchange for the defendant Rinehart has “C’mon . . . my guy gets it and did performing rehabilitative steps. On a served as this class voluntarily.” If the prosecunational level, “diversion” sometimes Lake County’s State’s tor drops the case, we have achieved means that defendants are “diverted” Attorney “diversion.” from jail or prison while they are monsince his Diversion has been happening in itored in programs similar to our drug election in Lake County for decades. Sometimes or mental health court. I will be using November we haven’t called it “diversion,” but “a “diversion” throughout this article to 2020. Prior to that he rose by any other name would smell refer to cases in which we seek rehabilpracticed as sweet.” (You can never go wrong itation and restoration in exchange for criminal defense, first in the Lake in a Docket article by quoting Shakedismissing the pending charges.

County Public Defender’s Office and speare early.)

In this article, I hope to exthen in private practice.

The question is not whether our plain the State’s Attorney’s Office’s

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reasons for formalizing and expanding diversion while also inviting members of the bar to utilize these new programs. Either side can propose these diversion dispositions.

THE NEED FOR DIVERSION FROM THE SYSTEM’S PERSPECTIVE One of the many jobs of the justice system is to respond to changing social and legal conditions.

Because judges are limited in their ability to institute broad policy in light of their (appropriate) case-bycase approach, it often falls to a prosecutor’s office to lead the way with respect to re-shuffling resources or to instituting reform.

Respectfully, I think one of the biggest mistakes an individual or a system can make is to think “I can do it all, and I can do it the same as I have always done it.”

With tightening government budgets, we have to admit that government must do some things differently than in the past. It must decide its priorities and it must deploy its limited resources toward those priorities.

Separate from this resource-driven approach, we are morally required to account for institutional racism and to re-tool programs that continue to perpetuate and even amplify the failures of the past.

As we deal with an increase in violent crime that dates back to 2017 in Lake County, plus decades of institutional racism throughout our country, it is incumbent on the prosecutor’s office to move resources toward these most pressing problems.

With these goals in mind, the Lake County State’s Attorney’s Office looks to expand diversion opportunities with a goal of providing “individualized justice” while also decreasing docket pressures as we come out of COVID-19. By decreasing docket pressure, we allow prosecutors, defense attorneys, judges, clerks, and probation officers to focus their precious time on violent crime, DUIs, sex cases, and complicated property cases. All of this will be accomplished while keeping the victims involved and informed as (appropriately) required by the Victims’ Bill of Rights. We are the first office to hire a Chief of Victim Services, and we have expanded, for the first time in years, the number of victim witness counselors. The best diversion programs include the victims in the process.

protection of society that incarceration, a conviction, and/or sex-offender registration interrupt those opportunities for some. The justice system should be intentional about this sorting decision.

How many times have we heard that “supervision is not a conviction on your record?” As I explained to clients in my previous life, there is no dusty “record” in Springfield or Washington DC that counts convictions. In the digital age, the “record” is no more remote than the Clerk’s online docket system. There are certainly enormous benefits to all parties with respect to court supervision; a truly “clean record” is not one of them.

Successful completion of a diversion program means that an individual can focus for a period of time on completing restorative steps and then see his or her case dismissed. This dismissal allows for faster (though not automatic) expungement and should be reserved for those who have not only completed rehabilitative steps but also shown true remorse. No one is permitted entry into the formal diversion programs without taking responsibility for what they have done.

“Deflection” is a term that usually refers to an offender performing some rehabilitative step to avoid being charged.

THE NEED FOR DIVERSION FROM THE INDIVIDUAL’S PERSPECTIVE Individuals need jobs and educational opportunities to have hope in our society. It is necessary for the

THE EVIDENCE Recent studies in Texas and Pennsylvania show that diversion programs dramatically decrease crime in the long run. In Texas, research from 2020 found that defendants without a prior felony conviction who participated in a diversion program experienced an immediate and dramatic reduction in subsequent offending. The total number of future convictions fell by 75% over a 10-year follow-up period, compared to similarly situated defendants who did not receive diversion. The diversion participants also were employed at a 50% higher rate than the other group. Most critically, the study found that African American men benefitted the most from the diversion programs that were analyzed.

Out of the University of Pennsylvania, a study released in 2022 demonstrated that individuals who avoided misdemeanor sentences on their records for non-violent offenses had a 35% lower rate of recidivism than those who did not receive diversion. The Penn study also found that there were dramatic savings on incarceration costs.

Finally, closer to home, Kane County has employed a diversion program for domestic violence cases since 2010. Kane County saw a 25% decrease in intimate-partner violence between 2013 and 2019, while Lake County saw a 3% increase.

The studies show that diversion programs must be

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deployed carefully and intelligently. To that end, the Lake County State’s Attorney’s Office now has several attorneys formally reviewing felony diversion matters, which is a dramatic increase from the past.

DEFLECTION VS. DIVERSION A brief note regarding definitions (this time, without Shakespeare): “deflection” is a term that usually refers to an offender performing some rehabilitative step to avoid being charged. Deflection does not involve the courts or the prosecutors with respect to an individualized case. Private defense attorneys may work with police on deflection, but in Illinois, public defenders cannot be involved, because they are not yet appointed prior to charging. (Interestingly, in Milwaukee, deflection deals are negotiated with public defenders who, under Wisconsin law, are allowed to enter a case earlier.)

Our most well-known deflection program, A Way Out, was started by the Lake County Opioid Initiative and Judge Michael Nerheim when he was State’s Attorney. This program connects treatment options with low-level drug offenders who surrender in police stations. When individuals enter treatment, the police decline possession charges against the individual. This program continues today and is administered by the Lake County Health Department. But the scale of A Way Out is primarily a matter for law enforcement and treatment providers, not prosecutors or the courts.

In August 2021, federal and private grants allowed Lake County to open the Living Room Wellness Center, which serves as a crisis center for those undergoing acute episodes of mental illness. Sandra Bankston serves as our Justice Manager for the program. She has trained over 300 police officers on how to bring individuals to the Wellness Center instead of charging them. At all times, police are allowed to consider the safety of the individual, themselves, and the community in making decisions to deflect. But the goal of the program is to empower the police to bring an individual in crisis to the center in lieu of a jail or emergency room.

The final type of deflection that currently exists in Lake County is through intake at the Juvenile Courts.

Many times, juvenile intake officers will meet with a child and his family to determine if there are rehabilitative steps that can be achieved prior to the filing of a petition for delinquency. In 2021, our office secured a grant for the STEP UP program, which provides domestic violence counseling to minor offenders and their families. (Karen Levi identified this program and wrote the grant application that led to it coming into being. More about this in a future article.)

Deflection programs must have community support and be closely monitored by police and prosecutors to ensure the safety of the public. Our office will always look for more opportunities to partner with police on deflection. Deflection greatly decreases court

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dockets, and prosecutors retain the ability to bring charges should an individual fail to complete rehabilitative steps.

FORMALIZING DIVERSION: REMOVING “CONNECTIONS” AS THE CURRENCY OF JUSTICE In 2014, the State’s Attorney Office started a formal diversion program for non-violent felony offenses called the “Alternative Prosecution Program” (APP).

At that time, there was a requirement that participants have no prior convictions of any kind—including misdemeanors. The program was run by a volunteer attorney. Individuals pled guilty to low-level, non-violent felonies and the case was dismissed if they completed their rehabilitative steps—including close monitoring by the SAO and check-ins with the Court.

Between 2014 and 2020, there were 118 participants despite the fact that the SAO filed over 21,000 felony cases during those seven years. While felonies may be reduced to misdemeanors or dismissed early, only .05% of the felony caseload was handled through formal diversion. (Kane County has informally estimated that over 20% of their felony caseload is handled through formal diversion at this time.)

Much more significantly, from 2014 to 2020, only eight of those participants were African American and 28 were Latino. African American defendants make up approximately 35% of our felony caseload, but only 7% were admitted into the felony APP between 2014 and 2020.

We will continue to work hard to increase awareness about the program. (Another teaser for the second article.) For 2021, we had 20 participants enter APP (the highest number since 2018), and 30% were African American. In 2022, we have already admitted 18 participants in the first half of the year, and over 30% of the participants are African American. So far, our success rates exceed the 2014 through 2020 period; no one has failed the program in 2021 or 2022. (We will be including all this information on our SAO data dashboard.)

Aside from APP, we are also starting a formal diversion program for domestic violence cases that is modeled on Kane County and State’s Attorney Joe McMahon’s success. Lake’s program was developed in consultation with and the support of A Safe Place and North Suburban Legal Aid Clinic. In 2019, 55% of domestic battery cases were completely dismissed, and the defendants received zero treatment. This program will allow first-time defendants to quickly enter treatment by taking responsibility for the harm they caused via a plea of guilty. Upon completion of treatment, the case will be dismissed, and the plea vacated.

At the same time, the survivor in the case will receive cost-free representation through the North Suburban Legal Aid Clinic. Victims will be involved in resolving the case through their counsel with the Clinic. The positions needed for this new program are funded by a

new grant we secured in 2021 from the Illinois Criminal Justice Information Authority (ICJIA).

Finally, we have strengthened ties with the College of Lake County and community-based organizations such as Legacy Re-entry Foundation and the Northern Illinois Recovery Community Organization (NIRCO) in order to connect defendants with programs that they can complete outside of court. In our misdemeanor division, in first-time retail theft, disorderly conduct, and unlawful possession of drug paraphernalia cases we are encouraging the completion of restorative or educational programs as part of an expedited diversion approach. Many attorneys over the years have (correctly) encouraged their clients to engage in rehabilitation in advance of negotiating.

Diversion in appropriate cases allows our system to quickly incentivize rehabilitation, thus relieving docket pressure while also requiring offenders to take real responsibility for the harm they have caused. Relieving docket pressure for non-violent, lower-level cases allows us to deploy more resources towards larger cases and to spend more time connecting victims to services.

While recognizing and removing past racial disparities, we must work harder to “scale-up” our diversion programs. In doing so, we can reduce crime in the long term and satisfy our constitutional mandate to restore the individual.

Contact the LCBA office for pricing.

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July 2022

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2022 LCBA GOLF OUTING

June 23, 2022 • White Deer Run Golf Club

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July 2022

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The Illinois Supreme Court Makes Clear:“You’ve Got to Have Heart. All You Really Need is Heart”1

(Or at Least You Must Use an Available Defibrillator)

F

BY JEFFREY BERMAN

itness centers and clubs in their various forms and iterations seemingly are almost as ubiquitous these days as dandelions after spring rains. In what should be viewed as a stern warning to these kinds of omnipresent businesses to up their level of training and preparedness for customer calamities, on May 19, 2022, the Illinois Supreme Court issued a unanimous decision in a personal injury case2 holding that a fitness center will face liability claims for failing to come to the aid of a patron who suffered a medical emergency by using an available Automated External Defibrillator (“AED”).3

The main question presented in the case was whether a physical fitness facility has a duty under either the Physical Fitness Facility Medical Emergency Preparedness Act (Facility Preparedness Act)4 or the Automated External Jeffrey Berman Defibrillator Act (AED Act)5 to use of the law firm an AED when a patron is having an of Anderson + Wanca has apparent cardiac event and non-use extensive of the AED would amount to willful 123

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J erry Ross, Richard Adler, “Heart,” Damn Yankees. https://www.lyricsondemand.com/ soundtracks/d/damnyankeeslyrics/heartlyrics.html.

2 Dawkins v. Fitness International, LLC, 2022 IL 127561.

3 An AED can diagnose ventricular fibrillation and treat it through defibrillation by electrical therapy. Id. at ¶ 6.

4 210 ILCS 74/1 et seq. (2012).

5 410 ILCS 4/1 et seq. (2012).

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and wanton misconduct.6 Leo Dawkins (“Dawkins” or “Plaintiff ”), individually and as next friend of his wife, Dollett Smith Dawkins (“Dollet”), filed a complaint for personal injury and spousal loss of consortium against Fitness International LLC, LA Fitness, and LA Fitness Oswego (“LA Fitness”). The Plaintiff ’s operative pleading alleged experience in causes of action for both negligence commercial and willful and wanton misconduct litigation, class based on LA Fitness employees’ actions and insurance covfailure to use an available AED as reerage litigation quired by statute, even though there in state and was an employee trained to use the federal courts across the country.

He is Co-Editor of the Docket and currently serves as the Secretary of the LCBA Board of Trustees.

6 Dawkins v. Fitness Int’l, LLC, 2022 IL 127561, at ¶ 1.

AED on the premises.7 As alleged in the Complaint, Dollett was exercising at an LA Fitness facility in Oswego, Illinois, on November 18, 2012, when she “collapsed, stopped breathing and lost her pulse and circulation.”8 LA Fitness staff members were aware of Dollett’s medical emergency.9 Other patrons at the facility attempted to administer CPR to Dollett unsuccessfully and shouted to Fitness staff for aid and assistance.10 The complaint alleged there was an available AED and an employee trained to use it was on site at the time.11 However, neither the trained employee nor any other employees used the AED on Dollett.12 While at the LA Fitness facility, Dollett was experiencing a ventricular fibrillation.13 It takes less than one minute to apply AED treatment.14 Uncorrected, the condition leads to cardiac arrest, which in turn can lead to anoxic brain injury due to the lack of an oxygenated blood supply.15 The LA Fitness facility where Dollett’s injuries occurred was covered by the Facility Preparedness Act.16 Plaintiff alleged that the Facility Preparedness Act required LA Fitness to (1) have a functioning AED on site, (2) have staff properly trained in the assessment of patrons and the use of AEDs, (3) have properly trained staff who were required to know how to assess patrons who became unconscious for breathing and signs of pulse and circulation in preparation for employing an AED device, and (4) have a medical emergency plan for responding to medical emergencies.17 Plaintiff further alleged that the Facility Preparedness Act also required LA Fit-

ness staff to (1) assess unconscious patrons for signs of breathing, pulse, and circulation pursuant to the training of the AED operators and Fitness’s medical emergency plan; (2) assess unconscious patrons for use of an AED; (3) attach the AED pads on an unconscious patron who had no breathing, no pulse, or no signs of circulation; and (4) follow the visual and voice prompts on the AED.18 Plaintiff further alleged that when LA Fitness violated the Facility Preparedness Act it acted willfully, wantonly, and in utter disregard for Dollett’s safety in several ways, including by failing to meet these specific requirements.19 Plaintiff alleged that Dollett was rendered a disabled person with permanent and irreparable brain damage as a proximate result of LA Fitness’s violation of the Facility Preparedness Act and its willful and wanton misconduct in failing to use an available AED on Dollett in a timely fashion after she suffered cardiac arrest while exercising at one of their facilities.20 Plaintiff asserted that, had an LA Fitness employee connected the AED device to Dollett in a timely fashion “as required” and followed the AED’s prompts, the AED would have restored cardiac function and oxygenated blood to Dollett’s brain, thereby avoiding or lessening her brain injury.21 LA Fitness moved to dismiss. The Circuit Court granted the motion as to Plaintiff ’s negligence claims (Counts III and IV) because: (1) Dollett had signed a membership agreement that explicitly released LA Fitness and its employees from any liability for negligence in the event that Dollett were to suffer a heart attack, stroke, or other injury while working out at the facility and (2) the Facility Preparedness Act barred actions based on negligence that are related to the use or non-use of an AED where the defendant is compliant with the Facility Preparedness Act’s requirements, such as having an AED and an employee trained to use

Plaintiff asserted that, had an LA Fitness employee connected the AED device to Dollett in a timely fashion “as required” and followed the AED’s prompts, the AED would have restored cardiac function and oxygenated blood to Dollett’s brain, thereby avoiding or lessening her brain injury.

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10 11 12 13 14 15 16 17

Id. at ¶ 4.

Id. at ¶ 5.

Id. at ¶ 5.

Id. at ¶ 5.

Id. at ¶ 5.

Id. at ¶ 5.

Id. at ¶ 6.

Id. at ¶ 6.

Id. at ¶ 6.

Id. at ¶ 7.

Id. at ¶ 7.

18 19 20 21

Id. at ¶ 8.

Id. at ¶ 9.

Id. at ¶¶ 3, 10.

Id. at ¶ 10.

July 2022

13

it on site.22 In affidavits filed in support of its motion to dismiss Plaintiff ’s willful and wanton claims (Counts I and II) under section 2-619(a)(9)23 of the Code of Civil Procedure,24 LA Fitness asserted that it fulfilled the requirements of the Facility Preparedness Act and was therefore immune from liability.25 It further maintained that the Facility Preparedness Act created no duty to use an AED and afforded no private right of action to enforce any such duty and that Plaintiff had not pled a basis for his allegation that LA Fitness owed Dollett a duty to use the AED on her. LA Fitness also argued that neither its failure to use its AED nor any of the other alleged acts or omissions rose to the level of willful and wanton misconduct and that plaintiff had failed to plead facts in support of his claim that any such actions or omissions proximately caused Dollett’s injuries.26 After briefing and oral argument, the Circuit Court also dismissed Plaintiff ’s willful and wanton claims with prejudice, finding LA Fitness did not owe a duty to use the AED.27 On appeal, LA Fitness argued the AED Act and the Facility Preparedness Act should be read as preserving liability only for willful and wanton misuse of an AED, but not for a failure to use an AED, even in circumstances where the failure to use an AED would amount to willful and wanton conduct.28 LA Fitness further argued that the AED Act’s reference to acts or omissions involving the use of an AED and the Facility Preparedness Act’s reference to “use or non-use” of an AED were meant to proscribe only the “omissions” of acts or procedures that are necessary to the proper operation of an AED when an AED is used, rather than to require the use of an AED in the first place.29 The Third District Appellate Court found LA Fitness’s interpretation to be contrary to the plain language of the statutes at issue.30 The Appellate Court thus reversed the Circuit Court’s dismissal of the willful and wanton claims in Counts I and II. In doing so, it first found that the Facility Preparedness Act when read in conjunction with the AED Act gave rise to a duty to use the AED.31 The Appellate Court further held that civil liability may attach to willful and wanton failures to use an AED.32 The appellate court also found that a private right of action could be implied from the Facility Preparedness Act.33 22 23 24 25 26 27 28 29 30 31 32 33

14

Id. at ¶ 12.

735 ILCS 5/2-619(a)(9).

2022 IL 127561, at ¶ 13.

Id. Id. at ¶ 14.

Id. at ¶ 15.

Id. at ¶ 17.

Id. Id. at ¶¶ 18-21; see 2020 IL App (3d) 170702-U, ¶¶ 30, 31.

Id. at ¶ 18; see 2020 IL App (3d) 170702¬U, ¶¶ 26, 30.

Id. at ¶¶ 18-19; see 2020 IL App (3d) 170702¬U, ¶¶ 25, 30-31.

Id. at ¶ 21; see 2020 IL App (3d) 170702¬U, ¶¶ 33-38, 44.

The Docket

The Supreme Court examined the language of the Facility Preparedness Act and AED Act, noting that the question of whether a statutory duty was created that avoids dismissal of the willful and wanton counts presented an issue of statutory construction subject to well-settled rules.34 Its analysis of the statutes at issue led it ultimately to agree with the Appellate Court.35 The Supreme Court observed that Section 5 of the AED Act articulated the legislative intent behind the statute and provided “that timely attention in medical emergencies saves lives, and that trained use of [AEDs] in medical emergency response can increase the number of lives saved.”36 It further noted the intent of the General Assembly to “to set standards for the use of [AEDs] and to encourage their use.”37 The Supreme Court held that, “by their plain terms, neither of these statutes immunizes a defendant from liability arising from the failure to use an AED on an injured person, provided that such failure was willful and wanton.”38 As such, “civil liability may attach to willful and wanton failures to use an AED. In other words, a right of action does exist for willful and wanton misconduct in connection with the non-use of an AED.”39 The Supreme Court also sternly rejected LA Fitness’ converse statutory construction arguments. The Court observed that LA Fitness would read the statute to provide that “a fitness facility could fully comply with the Facility Preparedness Act by having a functioning AED on site, training a staff member in its use, and developing an emergency medical plan, without having any obligation to implement the plan or to have the trained employee use the AED on a stricken patron under any circumstances.”40 The Court concluded that “reading of the statute would vitiate, or at least frustrate, the expressed purpose of the statutory scheme — which is to protect patrons of fitness facilities and save lives by encouraging the proper use of AEDs — and it would render the statutes absurd and ineffectual.”41 “Thus, any facility desiring maximum protection of its interests would instruct its staff to never use an AED.”42 That construction offered by LA Fitness would, in the Supreme Court’s view, “lead to an absurd result and would be just the opposite of the legislative intent.”43 Instead, the Supreme Court embraced the conclusions on point by the Appellate Court, which stated: “[t]his interpretation flouts the plain language of the statutes, their expressed purposes, and common sense.

34 35 36 37 38 39 40 41 42 43

Id. at ¶¶ 26-27.

Id. at ¶¶ 28- 40.

Id. at ¶ 37, citing 410 ILCS 4/5.

Id. Id. at ¶ 33.

Id. Id. at ¶ 40.

Id. Id. at ¶ 34.

Id.

As [plaintiff ’s] counsel aptly stated before the circuit court, Fitness’s reading would allow covered facilities to be in full compliance with the statutes even if they used the AED only ‘as wall art.’ We must avoid construing a statute in a manner tha[t] would render it absurd, pointless, or ineffectual.”44 Returning to the procedural posture of the decision below, the Supreme Court reiterated the case came before it on a Section 2-619(a)(9) motion to dismiss, which asserts affirmative matter outside the pleadings defeats the claim.45 As the basis for its motion, LA Fitness relied upon the statutory language to argue it was immune from liability and had no duty.46 But, the Supreme Court held LA Fitness does have a statutory duty, as described above, based on the alleged willful and wanton misconduct in the non-use of an AED.47 As such, Plaintiff could conceivably introduce evidence establishing that LA Fitness’ failure to provide AED treatment to Dollett in a timely manner after she collapsed rose to the level of willful and wanton misconduct that breached LA Fitness’ duty owed to Dollett, thereby proximately causing her injuries.48 Because a private right of action exists,49 and the statutes do not immunize LA Fitness from liability for willful and wanton misconduct, the Supreme Court concluded “there is no real ‘affirmative matter’ that it can be relying upon that would support a motion to dismiss under section 2-619(a)(9).”50 As such, the Supreme Court agreed with the assessment that “[a]t this early stage of the litigation, such a possibility cannot be ruled out as a matter of law. Taking the allegations in [plaintiff ’s] complaint as true, the complaint may not be dismissed as a matter of law.”51 While LA Fitness sought to absolve itself of the consequences of its failure to respond to a patron’s emergency using the tools required to be at hand for just that purpose, the Supreme Court’s decision makes clear that such technical musings are not “reasonable.”

The Court’s admonition gives full effect to the clear language of the two statutes at issue. Perhaps most importantly, it comports with what any person familiar with these circumstances reasonably would expect.

Persons suffering a medical emergency cannot be ignored and available AEDs should be used in circumstances where a trained assessment concludes use of the AED is necessary and appropriate. Any covered business that fails to do so can face claims for civil liability under Illinois law.

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44 Id. at ¶ 40, quoting 2020 IL App (3d) 170702-U, ¶ 32.

45 Id. at ¶ 41.

46 Id. 47 Id. 48 Id. 49 Id. at ¶ 43 (expressly agreeing with the appellate court’s conclusion that private right of action exists under the Facility Preparedness Act).

50 Id. at ¶ 33.

51 Id. at ¶ 41, quoting 2020 IL App (3d) 170702-U, ¶ 44.

July 2022

15

Writer’s Workshop: Write as if the Reader Will Be a Human Being

T

BY STEPHEN J. RICE

he Netflix show Ozark concludes this year with a season that Netflix is releasing in two blocks of episodes: one block was released in early 2022, and the second block came later. The other day my wife and I finished the first block. Ozark is an outstanding show that has taken its place in our “golden-age-of-TV,” so we were naturally eager to know: when will the second block of episodes be released?

For the answer, I somewhat inartfully asked Siri (the supplied an answer that we would expect from a computer. iPhone’s virtual assistant): “When is Ozark coming out?”

Google’s assistant responded like a human being.

Siri answered literally, as one would expect a computer to do: “Ozark was released in 2017.” Obviously this was not the WHY THIS ANECDOTE? answer I was seeking.

Because it relates to how attorneys write. Aspects of And so I switched to Google’s assistant. Answer: “Ozark standard “attorney writing” are Siri-esque, in that the prose will return for its final episodes on Friis often too literal. “This is a feature day, April 29 on Netflix.” Google underand not a bug,” you might be thinking.

Stephen J. stood the question like most humans While it can sometimes be a feature, it Rice is an would have done. is quite often a bug.

Assistant One of my favorite legal maxims is Let me give you a pedestrian examState’s “words have meaning by the company ple. You’re drafting a motion to compel Attorney in the Civil Dithat they keep.” (You like your fancy after failing to work out a compromise vision of the canons? Then noscitur a sociis.) The with your opposing counsel. Quite Lake County company that a word keeps can be the commonly, the prose will look like this: State’s words around it, or more broadly the On March 5, 2022, counsel for the Attorney’s circumstances in which their meaning plaintiff sent the defendant’s counOffice. He was the exists. (E.g.: “I did it:” Is there a dead sel an email asking when discovery 2019-2020 man on the ground, or a new car in the would be tendered. On March 15, President of the Lake County Bar driveway?) Siri was too literal-mind2022, defendant’s counsel respondAssociation. ed about the question I asked, and it ed that he needed more time. On

16

The Docket

March 17, 2022, counsel for the plaintiff wrote that he would give defendant’s counsel until March 23, 2022, to tender discovery. On March 24, 2022, counsel for the defendant emailed that “we stand on our objections and will produce nothing more.” On March 25, 2022, the parties had a status call before this Court and informed the Court that this motion would be forthcoming. The Court gave counsel for the plaintiff until April 5, 2022, to file the motion.

(Are you mentally exhausted yet? Did you even bother to read that block quote?) Remember: your reader—the judge, or maybe her clerk—loves motions to compel. After all, we all studied law to participate in such things, right?! So anything you can do to make such motions even remotely more digestible will be to your advantage. And so, compare: • March 5, 2022: Plaintiff emailed the defendant, asking when discovery would be tendered.

• March 15: Defendant responded, asking for more time.

• March 17: Plaintiff emailed March 23 as an extension.

• March 24: Defendant emailed that “we stand on our objections and will produce nothing more.”

• March 25: At the status call with the Court, Court gave plaintiff until April 5 to file this motion.

On March 5, 2022, counsel for the plaintiff sent the defendant’s counsel an email asking when discovery would be tendered.

On March 15, 2022, defendant’s counsel responded that he needed more time. On March 17, 2022, counsel for the plaintiff wrote that he would give defendant’s counsel until March 23, 2022, to tender discovery. On March 24, 2022, counsel for the defendant emailed that “we stand on our objections and will produce nothing more.” On March 25, 2022, the parties had a status call before this Court and informed the Court that this motion would be forthcoming. The Court gave counsel for the plaintiff until April 5, 2022, to file the motion.

A few annotations about the changes: (1) The first date written above contains the year. That is perhaps unnecessary but still sensible, particularly because a reviewing court may read this many years after the fact. But after the first date, no other dates need to contain the year: it is plain from the context that this is an unbroken series of dates that are proximate to each other. Google’s assistant would understand that. (If your judge is Siri, the year is the least of your problems.)

(2) “ Plaintiff” and “defendant” are shorthand for “counsel for the plaintiff” or “defendant’s counsel.”

The legal reader will understand who’s doing what without you spelling it out explicitly. Again, Google’s assistant would understand!

(3) F ormatting: Many attorneys write as if their word processor only has the functionality of a typewrit-

er. A typewriter could not bold or italicize words (some typewriters could underline, from whence the practice of underlining case titles came, I suspect). A typewriter could not automatically number paragraphs or insert formatted bullet points.

Your word processor, of course, can do all of these things! Note how perhaps the clearest, best change that I made above is not the textual tweaking, but rather the formatting. Particularly when you’re dealing with a chronology, as above, some simple formatting makes the point both come alive and be easily digestible to your reader. Any attorney reading this column can execute the formatting above, even if you are extremely tech-challenged otherwise.

Below is a more complex formatting example, which involved the timeline for a statute-of-limitations defense I asserted: ------- | ------------------------------------------------ | --------------------| -------Feb. 22, 2016 Motion to Suppress Filed

Feb. 22, 2018 Apr.. 19, 2018 Complaint Expiration filed of statute of (Doc# 1) limitation

Ponder briefly what the prose version of the information above would look like. In prose, the information would be both considerably more verbose and less clear—a legal-writing double-whammy.

You might be thinking: “Man are you picking every nit here, Rice!” And, “I just need to get these stupid motions on file!”

My motion-to-compel example may not strike you as, well, compelling. But do not be misled into thinking that this lesson applies only to procedural motions. The same lesson applies to everything you write, right up to your brief for the U.S. Supreme Court, if you ever get there. All courts, from the traffic court to the SCOTUS, are inundated with things to read. The lawyer who picks a few nits for the sake of clarity manages to slightly unburden a drowning reader, who is absolutely awash in text.

(You know who else is awash in text? That person you are about to next email!)

The burden on you of altering your writing style—be it writing less pedantically or incorporating some simple formatting—is low. The greatest hurdle is simply habit, and admittedly changing a habit is never easy. Once you do, though, the effort goes to almost nil, and the benefits accrue throughout time.

I’ve provided just one example, but legal writing is often too literal in countless other ways. Here’s just one other example: “The plaintiff had five (5) days to respond to the defendant’s five-thousand ($5,000.00) settlement offer.”

Even Siri doesn’t need the unnecessary number-redundancy, or the zero cents.

Write with the assumption that a sentient human being will read your prose. As even Google’s assistant know, words do in fact have meaning by the company that they keep.

July 2022

17

Turn and Face the Strange Ch-ChChanges1 Supreme Court Amends Hearsay Exception Rule

O

BY HON. CHARLES JOHNSON

n March 13, 2016, Ryan James Deroo was driving his Grandma’s car on Turkey Hollow Road in Rock Island County when he lost control of the car, which flipped over several times and crashed into a ditch.2 Deroo was charged with Aggravated Driving Under the Influence,3 based on his four prior DUI convictions. At trial, the State introduced testimony of an eyewitness to the crash, as well as the medical records of Deroo’s treatment at an emergency room that night.

These included blood tests that were performed as part of his treatment, which disclosed the presence of alcohol in Deroo’s blood.4 Deroo, for his part, testified that he was not driving the car at the time of the crash, but instead that a person known only as Hon. Charles “T” was driving. Deroo knew nothD. Johnson ing more about “T,” including where has been an he came from or where he went after Associate Judge for the the accident. This rock-solid defense 19th Judicial apparently was insufficient, as Deroo 123

1 2 3

4

18

Bowie, David “Changes” UK: RCA Records. 1972. RCA 2160.

People v Deroo, 2022 IL 126120, ¶4.

Deroo was charged with Agg DUI: 625 ILCS 5/11-501(a)(2),(d)(2)(D); Agg DUI per se: 625 ILCS 5/11-501(a)(1), (d)(2) (D); and Agg Driving While Suspended: 625 ILCS 5/6-303(d). .209 BAC; 2022 IL 126120, ¶¶4, 9.

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was convicted of the charged offenses and sentenced to nine years on the DUI and three on the Driving While Suspended. This relatively prosaic felony DUI case then turned into a fascinating decision on the business records exception to the hearsay rule.

Deroo appealed his conviction, alleging that the State’s introduction of his blood test results violated Illinois Rule of Evidence 803(6), which provides:

Circuit since 2005. He was an assistant Lake County State’s Attorney from 1990 to 1994, and a local prosecutor from 1994 to 2005. He is currently assigned to the Criminal Division.

RULE 803.

HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ***

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, but not including in criminal cases medical records. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (Emphasis added.)

Code of 2012, when each of the following criteria are met: (1) the chemical tests performed upon an individual’s blood, other bodily substance, or urine were ordered in the regular course of providing emergency medical treatment and not at the request of law enforcement authorities; (2) the chemical tests performed upon an individual’s blood, other bodily substance, or urine were performed by the laboratory routinely used by the hospital; and (3) results of chemical tests performed upon an individual’s blood, other bodily substance, or urine are admissible into evidence regardless of the time that the records were prepared. (Emphasis added.)

This relatively prosaic felony DUI case then turned into a fascinating decision on the business records exception to the hearsay rule.

Tortured syntax notwithstanding, that seems pretty clear, right? No medical records in criminal cases. The State, on the other hand, had sought (and achieved) admission of the blood test results pursuant to section 11501.4(a) of the Illinois Vehicle Code,5 which provides: § 11-501.4. Admissibility of chemical tests of blood, other bodily substance, or urine conducted in the regular course of providing emergency medical treatment. (a) Notwithstanding any other provision of law, the results of blood, other bodily substance, or urine tests performed for the purpose of determining the content of alcohol, other drug or drugs, or intoxicating compound or compounds, or any combination thereof, of an individual’s blood, other bodily substance, or urine conducted upon persons receiving medical treatment in a hospital emergency room are admissible in evidence as a business record exception to the hearsay rule only in prosecutions for any violation of Section 11-501 of this Code or a similar provision of a local ordinance, or in prosecutions for reckless homicide brought under the Criminal Code of 1961 or the Criminal 5

625 ILCS 5/11-501.4(a).

Well, okay. That seems pretty straightforward as well. Ay there’s the rub.6 Defendant argued in the Appellate Court that the statute and the rule were in direct conflict, and if a statutory rule of evidence conflicts with a Supreme Court Rule, then the Supreme Court Rule prevails.7 This would, of course, have resulted in the exclusion of the blood test evidence. Despite this rule of interpretation and the very obvious conflict in language between the two provisions of law, the Appellate Court found that there was no conflict at all. The Court relied on People v Hutchison,8 which, in addressing this same issue, had examined the committee comments to the Illinois Rules of Evidence, enacted Jan. 1, 2011. The comments said that the rules were “not intended to abrogate or supersede any… statutory rule of evidence” that existed at the time of the adoption of the Rules.9 Since §11-501.4 existed at the time of the adoption of the Rules of Evidence, and the committee comments said the Rules were not intended to supersede the statute, the Appellate Court found that there was, in fact, no conflict, and that the statutory hearsay exception applied to allow the admission of the medical records. Deroo’s conviction was therefore affirmed.10 Unsurprisingly, Deroo was unsatisfied with this result, and appealed to the Supreme Court. Once again he argued the obvious conflict, and urged the high Court to apply the rule of interpretation that would favor the Supreme Court Rule.11 The State, relying on its successful 6 7 8 9 10 11

Shakespeare, Wm., Hamlet, Act III, Scene I. People v Deroo, 2020 IL App (3d) 170163, ¶39.

2013 IL App (1st) 102332.

People v Hutchison, 2013 IL App (1st) 102332, ¶¶18, 24.

2020 IL App(3d) 170163, ¶46.

Interestingly, this is the argument put forth by Justice Holdridge in his dissent to the Appellate decision; 2020 IL App (3d) 170163,

July 2022

19

argument at the Appellate level, argued that there was no conflict at all. More pointedly, the State argued that the Supreme Court, in adopting the rules of evidence, had concluded that “[t]here [wa]s no current statutory rule of evidence that [wa]s in conflict with…the Illinois Rules of Evidence.” Based on this finding, the State argued that there was no conflict (because the Supreme Court had said so), and that the statutory hearsay exception should stand, allowing the admission of the evidence.12 The Supreme Court began its analysis by finding that the language of the statute and of the rule was clear and unambiguous, and plainly in conflict: “each provision, by its plain language, directs a different action; …803(6) prohibits what section 11-501.4 allows.”13 In considering the State’s argument, the Court found that, because the language was clear and unambiguous, it should not resort to extrinsic aids of construction such as the committee comments for resolution of the conflict.14 The Court then provided an interesting historical perspective of the business records exception.

THE LONG AND WINDING ROAD15 Dating back to the early 1920’s, Illinois courts had held that, for a hospital record to be admissible as an exception to the hearsay rule, there must be live testimony by the creator of the record that it is correct. This was especially true if the record contained a diagnosis or medical opinion, in order to allow the maker of the opinion or diagnosis to be subject to cross-examination. For many years, there was a debate in the courts as to whether such opinions required expert testimony by the maker of the opinion.16 In Wright v. Upson, the Court held that “(i)f the hospital record is admissible at all, it is for the same reason that books of account are admissible, and the same character of proof is required, and all persons who make entries therein are required to testify to their correctness before they are admitted in evidence.” (emphasis added.)17 In the 1960’s, these common-law rules were codified in both the Code of Criminal Procedure18 and Supreme Court Rules.19 Both sections specifically excluded medical records from the category of business records that could be admitted as exceptions to the hearsay rule.

The adoption of Federal Rule of Evidence 803(6) in 1975 largely eliminated this situation in federal courts, by stating specifically that records containing opinions and diagnoses were admissible under the business records exception.20 The theory behind the change was that opinions and diagnoses bore the same level of reliability as other business records, inasmuch as they were relied on by the 12 13 14 15 16 17 18 19 20

¶48, et seq.

2022 IL 126120, ¶23.

2022 IL 126120, ¶22.

Id. ¶24.

Lennon, John/McCartney, Paul, Apple Records, 1970 Irene M. Sheridan, Wilson v. Clark: The Need to Include Medical Records in the Business Records Exception to the Hearsay Rule, 13 Loy. U. Chi. L.J. 587, 592-93 (1982).

Wright v. Upson, 303 Ill. 120, 144 (1922).

Ill. Rev. Stat. 1967, ch. 38, ¶ 115-5.

Ill. Rev. Stat. 1967, ch. 110A, ¶ 236.

2022 IL 126120, ¶36.

20 The Docket

business (the hospital) in day-to-day operations (often with lives at risk).21 On this basis, the federal courts allowed the admission of hospital records as an exception to the hearsay rule as a matter of law. Thereafter, the Illinois legislature enacted §11-501.4 in 1988,22 and the Illinois Supreme Court amended Rule 23623 in 1991 to allow medical records to be included in the business records exception. However, when the Supreme Court adopted the Illinois Rules of Evidence (including Rule 803) in 2010, it copied the existing Federal Rules, but inserted the line about excluding medical records in criminal cases.24 The Supreme Court was attempting to be mindful not to supersede or invalidate any existing rules of evidence, including §115-5, but in so doing, it essentially re-invigorated the old common-law rule (at least for criminal cases) that it had been moving toward eliminating.25 Thus, as of 2011, we had §115-5 and Rule 803(6), which excluded medical records as business records exceptions to the hearsay rule, and §11-501.4 and Rule 236, which included them. What could go wrong?

Mr. Deroo’s case, that’s what. Despite the previous cases that side-stepped the obvious conflict,26 the Supreme Court took this one head-on. In doing so, the Court noted that: “Though used sparingly, this court has expressly reserved the prerogative to depart from the rulemaking procedures set forth in Illinois Supreme Court Rule 3 (eff.

July 1, 2017) and may utilize a case before us as a vehicle to adopt a rule change.” In re B.C.P., 2013 IL 113908, ¶ 17, 371 Ill.Dec. 757, 990 N.E.2d 1135.27 It even went so far as to quote Professor Michael Graham, Special Advisor to the Illinois Supreme Court Committee on Rules of Evidence: It is difficult to acknowledge that [the rule set forth in Wright requiring the exclusion of medical records from the business records exception] continued to represent the state of the law of admissibility of hospital records in Illinois for nearly 70 years. The requirement of calling or accounting for all persons making entries has virtually disappeared from the law of evidence everywhere as applied to business records generally. *** No reason for continuing it with respect to hospital records was advanced, and none is apparent. *** The objection to opinions in the form of diagnoses or recitals of the patient’s condition is equally outmoded. The rule against opinions as it once was conceived has been revised so as to admit opinions that may be helpful to the trier of fact, and this attitude needed to be extended to hospital records.” Michael H. Graham, Graham’s 21 22 23 24 25 26 27

Sheridan, note 16, supra, at 603.

Pub. Act 85-992 §1 (eff. Jan. 5, 1988).

Ill. Rev. Stat. 1967, ch. 110A, ¶ 236.

2022 IL 126120, ¶36.

Id., ¶41.

Hutchison and Appellate-level Deroo, supra.

2022 IL 126120, ¶40.

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July 2022

21

Handbook of Illinois Evidence § 803.6, Commentary, at 1069-70 (2019 ed.).28

would have prohibited introduction of his blood-alcohol content should have been followed. Six years later, the entire rule is amended, and Deroo’s conviction and prison sentences are affirmed.30 I suppose, if not for his drunken stupidity in 2016, we would still be faced with internally inconsistent evidence rules. Probably not comforting for Deroo, but clarifying for practitioners, at the very least.

The Court therefore amended Rule 803(6) to delete the medical records exclusion for criminal cases from the rule.

THIS IS THE END, BEAUTIFUL FRIEND29 So, pity poor Mr. Deroo. He went into his case with a pretty strong argument that the Rule of Evidence that 28 29

2 2 0

D E R H

S

The Court pointed out that there are no ex post facto concerns, since the Rule amendment only affects the introduction of evidence, not the sufficiency thereof. 2022 IL 126120, ¶46.

L A NU

A B LC AN

2

30

Id., ¶43 The Doors, The End, Elektra Records, 1967.

T EN

V E

2 2 0 2 , 9 R E B .

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23

Board of Directors’ Meeting

The

May 10, 2022 CONSENT AGENDA • Minutes • New Members A motion was made and seconded to approve the consent agenda. The motion was unanimously approved.

DISCUSSION ITEMS • Treasurer’s Report April was a positive month with successful seminars.

Registrations for the seminars went very well and April will be a net positive month for the Association as many things are becoming in person. With more in person events, expenses will increase.

Meeting Minutes

BY DANIEL HODGKINSON SECRETARY

OLD BUSINESS: Budget The new budget will reflect a move to much more in person events this year.

A motion was made, seconded and passed to continue the budget discussion to the next meeting.

FINANCIAL SUBCOMMITTEE UPDATE: After interviewing a few firms, the sub-committee has decided to move on from Manning Silverman.

Lisa Malina is the proposal of the sub-committee.

A motion was made, seconded and passed to

accept Lisa Malina as the new provider of financial services.

RESERVE POLICY: There was discussion had concerning the creation of a reserve fund policy for the association.

NEW BUSINESS: Family Law Seminar There was a very strong turnout for the seminar.

The feedback from the event was also exceedingly positive.

Liberty Bell Results: The event was well attended and was met with positive feedback.

Golf Outing: The Bar is looking forward to the in person Golf Outing.

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

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EXECUTIVE DIRECTOR REVIEW: Executive session was held at 12:35 to discuss the executive director annual review. A motion was made, seconded and

passed concerning the review.

Meeting Concluded 12:43 p.m.

BOARD MEMBERS PRESENT Joseph Fusz President Tara Devine First Vice President Kevin Berrill Treasurer Daniel Hodgkinson Secretary Katharine S. Hatch Second Vice President Hon. Patricia Cornell Past President Dwayne Douglas Director Craig Mandell Director Hon. Jacquelyn Melius Director Jeremy Harter Director Jeff O’Kelley Director Sarah Raisch Director Greg Weider Executive Director

LAWYER REFERRAL SERVICE

WHY SHOULD YOU JOIN? The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member attorneys with an opportunity to build business through client referrals. The service benefits the public by helping callers quickly find an attorney in the area of law in which they need help.

The LRS program is designed to assist persons who are able to pay normal attorney fees but whose ability to locate legal representation is frustrated by a lack of experience with the legal system, a lack of information about the type of services needed, or a fear of the potential costs of seeing a lawyer.

Cost is only $200 annually for a Standard listing or $350 for a Premium listing. Download the application at www.lakebar.org/page/LRS or contact the LCBA office for more information.

ATTORNEYS NEEDED IN THE FOLLOWING CATEGORIES • Administrative • Bankruptcy • Commercial • Consumer • Employment • Environmental • Estate Planning, Wills, Trusts and Probate Visit lakecountylawyer.info for a complete list of available categories.

CONTACT THE LCBA AT 847.244.3143 OR INFO@LAKEBAR.ORG

LAKECOUNTYLAWYER.INFO

July 2022 25

50 LCBA Events to Ponder as we Thank You for Your Membership

F

irst and foremost, thank you for a great year. Due to the participation of LCBA members and our corps of committed volunteers we were able to successfully offer 5 legal seminars, 15 member events, 14 brown bag CLE offerings, 3 Tek Tuesday workshops, 3 GAL trainings, 6 collaborative events, 4 free legal advice clinics, 3 community food drives, an equity-based book drive for a local elementary school, a professional clothing drive, a highly entertaining Gridiron, and a successful foun-

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dation fundraising event.

Combined with 112 committee, board, and foundation meetings we had quite a successful year. Considering this all took place during a global pandemic; it was a remarkable year.

July starts the new program year for the Lake County Bar Association.

We finished last year with a wonderful Installation Social and a very successful Golf Outing. The momentum of these two events will lead the LCBA into what promises to be a fantastic year of events and

In the

Director’s Chair

meaningful educational opportunities. September will bring our annual shred event, the Young & New Lawyers Cubs Game and the first member luncheon and member reception of the year. October will offer the Fall Criminal Law Seminar in Milwaukee, WI, and the Pro Bono Awards Luncheon in partnership with Prairie State Legal Services.

Work on a new Lake County Bar Association strategic plan will begin this year. Members will have several opportunities to share their thoughts on the LCBA priorities moving forward.

Membership is the foundation on which the LCBA is built. I cannot express how valuable your input is to the planning process. Please take the time to share your ideas and concerns.

We are currently in the process of our annual membership renewal. If you have not already taken the opportunity to renew your membership, I encourage you to

BY GREG WEIDER EXECUTIVE DIRECTOR do so. This is also the perfect time of year to update your membership information. Please take a moment to log into your account and review your information. If you need assistance, please don’t hesitate to contact the LCBA office.

If you have not had the chance to be actively involved with the LCBA I encourage you to do so.

There is a wealth of opportunity to be engaged. Your participation will not only strengthen our organization but can provide opportunities for professional and personal growth. Encourage your colleagues to join and become actively involved. A thriving legal community can only be enhanced by an active and engaged local bar association.

Thank you again to all our members and volunteers who make the Lake County Bar Association a vibrant organization. I am looking forward to another remarkable year.

July 2022 27

Monthly

Committee Meetings

DAY

GO TO

WWW.LAKEBAR.ORG FOR THE MOST UP-TO-DATE CALENDAR INFORMATION

Bar

Bulletin Board

To place an ad or for information on advertising rates, call (847) 244-3143

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

2nd Tuesday

Criminal Law

VUFN

12:15-1:15

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

2nd 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

1st Thursday (Even Mo.)

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.

ANNOUNCING OUR NEW NAME!

STILL IN THE SAME LOCATION, CONTINUING TO PRACTICE IN LITIGATION & APPEALS, RESIDENTIAL & COMMERCIAL REAL ESTATE, BUSINESS LAW, ESTATE PLANNING, & TRUST ADMINISTRATION

ROBERT W. CHURCHILL WILLIAM A. CHURCHILL JOHN W. QUINN MARK T. HAMILTON MARK VAN DONSELAAR JOHN L. QUINN LEO J. DELANEY AMBER L. DESSELLES MARY LEE BERRESHEIM

TWO SOUTH WHITNEY, GRAYSLAKE, IL 60030 • (847) 223-1500 • WWW.GRAYSLAKELAW.COM

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July 2022 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: ecognition in advertising before the event and on signage at the event •R • Reception from 4:30 – 6:30 p.m. omplimentary beer and wine. Upgrades available for additional fee.

•C

Contact info@lakebar.org to add your name to a reception.

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