The Docket - September 2023

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A publication

300 Grand Avenue, Suite A Waukegan, Illinois 60085 (847) 244-3143 • Fax: (847) 244-8259 www.lakebar.org • info@lakebar.org

THE DOCKET EDITORIAL BOARD

Jeffrey A. Berman,Co-Editor

Hon. Charles D. Johnson,Co-Editor

Jennifer C. Beeler

Kevin Berrill

Hon. Bolling W. Haxall

Hon. Daniel L. Jasica

Hon. Christopher M. Kennedy

Jennifer Luczkowiak

Kevin K. McCormick

Shyama Parikh

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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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.

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The Digital Transformation of Bar Associations: Adapting to Current Legal Realities

The Lake County Bar Association requires a technological facelift, because although bar associations have long played a vital role in supporting the legal profes -

sion and fostering professional development, in today’s rapidly evolving legal landscape, the LCBA is facing unprecedented challenges and opportunities brought about by technological advancements and changing societal expectations. This column explores the most current topic affecting the LCBA—our digital transformation—and examines how we can effectively adapt to navigate the changing tides of the legal profession.

need for digital transformation at the LCBA:

Changing Member Expectations: Younger generations of lawyers are entering the workforce with different expectations and preferences for engaging with professional organizations. They value convenience, flexibility, and digital connectivity. Bar associations must adapt their offerings to cater to these changing member needs and attract and retain a diverse membership base.

professional development opportunities.

Technological Advancements: Rapid advancements in technology, such as artificial intelligence and cloud computing, are reshaping the way legal services are delivered and consumed. The LCBA must leverage these technologies to streamline administrative processes, enhance communication, and provide innovative member services.

Kevin Berrill

Richard Gellersted Treasurer

Jeffrey Berman Secretary

Tara Devine Immediate Past President

Hon. Jacquelyn Melius

Craig Mandell

Sarah Raisch

Jeffrey O’Kelly

Jeremy Harter

Judy Maldonado

Hon. Bolling Haxall

The digital era has disrupted traditional industries, and the legal profession is no exception. The LCBA is under pressure to embrace digital transformation to remain relevant and responsive to the needs of our members and the wider legal community. The following are some key factors driving the

Remote Work and Virtual Collaboration: The COVID-19 pandemic has accelerated the adoption of remote work and virtual collaboration. The LCBA must provide resources and support to enable lawyers to effectively navigate remote work environments, access legal research tools remotely, and participate in virtual

Access to Justice: Digital transformation offers opportunities to improve access to justice by leveraging technology to streamline legal processes, enhance the delivery of legal services, and increase legal literacy among the general public. The LCBA can play a crucial role in driving initiatives that promote equal access to justice through technolo -

President’s Page The BY KATHARINE HATCH PRESIDENT

Katharine Hatch President Danny Hodgkinson

First Vice President

Second Vice President

gy-enabled solutions. While embracing digital transformation, the LCBA must also navigate legal and ethical considerations. Two key legal topics that the LCBA leadership must address are: data security and digital competence. The LCBA handles significant amounts of personal and confidential data. Our organization must comply with data protection regulations and implement robust security measures to safeguard sensitive information.

Digital Competence: The LCBA must promote digital competence among its members, providing training and resources to enhance lawyers’ technological

proficiency. This includes understanding the ethical use of social media, data analytics, and emerging legal technologies.

As the LCBA embraces digital transformation, we must proactively address the legal and ethical considerations arising from this transformation.

To ensure the LCBA’s position as a vital partner in the evolving legal profession, the LCBA is leaning into technology by adapting our offerings to meet member expectations and promote digital competence. The digital transformation of the LCBA will enhance access to justice, streamline legal processes, and empower our membership to thrive in the digital age.

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PC attorneys Patrick A. Salvi II and Tara R. Devine were recently recognized by Best Lawyers as 2024 “Lawyers of the Year.” Patrick A. Salvi II was honored in the area of Personal Injury Litigation – Plaintiffs and Tara R. Devine for Product Liability Litigation – Plaintiffs. Each year, only one lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making these awards a significant accolade. Lawyers of the Year are selected based on particularly impressive voting averages received during Best Lawyers peer review assessments.

The

Calendar of Events

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Big Changes in the Courthouse

Happy September! The unofficial end of summer is here. Back to work. Back to school. Back to routine. Back to sensible Docket articles.

Even though some of us view this time of year with just a bit of sadness, there is quite a bit to look forward to in the courthouse. September 2023 will long be remembered for the beginning of the end of cash bail in Illinois, which is part of the implementation of the SAFE-T Act, and for the rollout of the new case management system in the 19th Judicial Circuit.

In order to fully implement the SAFE-T Act, there will be several structural changes to our court system. First and foremost, there will no longer be a “Bond Court.” All cases that were previously initiated in Bond Court will now be calendared in

“First Appearance Court.” First Appearance Court will also serve as the courtroom where conditions will be set on cases that are either not detainable, or those for which the State’s Attorney has elected to not file petitions for detention. These cases will be heard weekdays between 10:00 a.m. and 2:00 p.m., and weekends beginning at 10:00 a.m. Holiday schedules will be determined by the court. These cases will be heard in T-020.

Detention hearings will be heard when the State’s Attorney files a Verified Petition to Deny Pretrial Release on a detainable offense. Unless a defendant moves for a continuance, hearings will occur within 24 hours for misdemeanors and Class 4 felonies, or within 48 hours for Class 3 or greater felonies. These hearings will occur weekdays beginning at 1:30 p.m.

in T-121. Weekend hearings will occur at 10:00 a.m., or as soon as practicable following completion of first appearances in T-020. Holiday court schedules will be determined by the court and will be held at 10:00 a.m. or as soon as practicable after the conclusion of First Appearance Court. Per the Illinois Supreme Court’s ruling in Rowe, the effective date of the Act is September 18.

As if that wasn’t enough change for our Circuit, the rollout of our brand new case management is also scheduled for the month of September!

Our case management system has been under construction for the last several years. Implementation will mark the end of a process that began under Chief Judge Ukena in 2019. Beginning with the screening process for vendors and continuing through the

BY CHIEF JUDGE MARK L. LEVITT

multi-stakeholder evaluation and culminating in the selection of Journal Technologies, Inc., the road to get to this point has been long, occasionally difficult, but well worth it in the end!

The “integrated case management system” (ICMS) encompasses new systems for all of the court’s stakeholders. The system, at “go-live,” will have three separate yet integrated components. eCourt will be the primary system which will run the day-to-day processes for the court and clerk. eProsecutor will operate within the State’s Attorney’s Office and will include a component to manage distribution of discovery. eDefender will operate within the Public Defender’s office. All three systems will work together to provide access to records and simplify the practice of law in the 19th!

ChiefPageJudge’s The

As I write this column, training sessions are ongoing for all of the judges, court staff, members of the Circuit Clerk’s Office, and all Assistant State’s Attorneys and Assistant Public Defenders and the members of their offices’ staff. The Lake County Bar Association will also be partnering with the court to provide training to all members of the private bar.

In addition to live training sessions, ongoing access to tutorials and recorded training webinars will be available on the Court and Clerk’s websites.

Although the Illinois Supreme Court has not yet mandated criminal e-filing, our new system is designed to accommodate it when that eventually occurs. Civil e-filing will continue through eFileIL

and is integrated with the case management system. As you can see, there are a lot of moving parts! While I am certain that our new system will be great, I do expect some bumps in the rollout. Please be patient with each other (and with us!) as we all adjust to our new system. As the development team has been preaching since the early days of this project: a

little space and grace will go a long way to ensuring success!

Meet the Board

JEFFREY BERMAN

Jeffrey Berman, a longtime member of the Lake County Bar Association, became a Director and Officer of the Board of Trustees in 2022, and recently was re-elected to a second term as Secretary. He has been a member of the Editorial Board of The Docket since 2012, and has served as its Co-Editor since 2016. He also served as a member of the Lake County Bar Foundation Board of Trustees from 2016 to 2022, including as President of the Foundation from 2017 to 2019.

Jeff earned his Bachelor of Science degree in Accountancy, with honors, in

1984, from the University of Illinois, Urbana-Champaign. He is an Illinois Certified Public Accountant. He also received his J.D. from the University of Illinois, where he was an editor of the Law Review, and graduated in 1987, magna cum laude

Jeff has over 35 years of complex commercial litigation experience in trial and appellate courts across the country. In March, he joined the Chicago-based law firm of Bock, Hatch & Oppenheim LLC, where his practice will continue to concentrate primarily on consumer class actions and related insurance coverage litigation.

He began his legal career in 1987 at the Chicago law firm of Ross & Hardies LLP, which later merged with McGuireWoods LLP, where he was named a Partner in 1995. Beginning in 2004 he was a Partner in the Chicago firm of Meckler Bulger Tilson Marick & Pearson LLP. In 2011, he moved to the Rolling Meadows firm of Anderson + Wanca, where he practiced until earlier this year. Jeff is AVVO Rated: Superb. He has been selected as a Super Lawyer each year since 2015, and as a Leading Lawyer since 2011. He also has served as a member of the Leading Lawyers Illinois

Advisory Board.

Jeff has an extensive history of civic and community involvement, including serving for twenty years as an elected Village Trustee for the Village of Buffalo Grove.

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The use of the CDFA designation does not permit the rendering of legal advice by Morgan Stanley or its Financial Advisors which may only be done by a licensed attorney. The CDFA designation is not intended to imply that either Morgan Stanley or its Financial Advisors are acting as experts in this field. Certified Financial Planner Board of Standards Inc. o wns the certification marks CFP®, CERTIFIED FINANCIAL PLANNER™ in the U.S. The appropriateness of a particular investment or strategy will depend on an investor’s individual circumstances and objectives. Morgan Stanley Smith Barney LLC (“Morgan Stanley”), its affiliates and Morgan Stanley Financial Advisor do not provide tax or legal advice. Clients should consult their tax advisor for matters involving taxation and tax planning and their attorney for matters involving trust and estate planning an d other legal matters. Morgan Stanley Smith Barney LLC. Member SIPC. CRC 5343466 01/2023

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Getting Your Marital Affairs in Order

BY JENNIFER BEELER

In a recent podcast, Jane Fonda talked about her divorce settlement agreement with the late Tom Hayden.1 Ms. Fonda and former “Chicago 7” member Mr. Hayden divorced after 17 years of marriage, with one son together. Both were political activists, but it was allegedly Ms. Fonda’s popular and profitable “feel the burn” workout videos from the 80’s that paid for Mr. Hayden’s political campaigns.

1Mr. Hayden’s everyman visage was seen as a physical mismatch for Ms. Fonda’s Hollywood good looks, and the couple were often referred to as “Beauty and the Beast.” When he told her on her 51st birthday that he was in love with someone else and he ended the marriage, Ms. Fonda found that it “helped a little” to stuff Mr. Hayden’s belongings into garbage bags, and throw the bags out of the window of their home.2

Ms. Fonda discussed in the podcast that she asked for a clause in her 1990 divorce settlement that Tom Hayden not be permitted to speak at her funeral. Given their respective celebrity status, it

1 Julia Louis-Dreyfus, Wiser Than Me with Julia Louis-Dreyfus, Season One, Episode One, April 11, 2023, Lemonada Media Inc.

2 Isabel Jones, Tom Hayden “Hated Jane Fonda’s Workout Videos, In Style, October 3, 2022, https://www.instyle.com/ celebrity/tbt-jane-fonda-tom-hayden-relationship

was not an unusual request. But that was just how passionate she was to be forever disentangled from him.

Mr. Hayden died in 2016. With no irony whatsoever, and perhaps given the passage of years after their acrimonious divorce, Ms. Fonda was one of the speakers at a UCLA memorial held in Tom Hayden’s honor.

Jennifer Cunningham Beeler is a partner at Ciesla Beeler, LLC, a family law firm with offices in Northfield and Gurnee. She is a mediator for both Cook and Lake counties, and also a collaborative law fellow.

The 84-year-old, 3-times married actor now states that she wants to be buried in the same no-headstone, grass-covered field where her second husband was laid to eternal rest, so their adult son does not have to visit two grave locations to pay his respects. The executor of Mr. Hayden’s estate has not commented on whether Ms. Fonda’s recent request is barred by the parties’ divorce agreement, or his estate plans.

The odds are high that many a spouse, in the thick of divorce proceedings, has fantasized that if the other side

just dropped dead, things would be a lot easier. Seasoned attorneys in both family law and probate know better. Divorce and death create a curious intersection of what could or should be in a marital settlement agreement, and what can be enforced, as opposed to provisions in a will. Can your MSA or Will ban your soon-to-be former spouse from attending your funeral, or from choosing a burial plot next to yours? This also raises the question of what is enforceable if a party dies during divorce proceedings, and what could still be enforceable after a former spouse has passed.

CHECK THOSE POWERS OF ATTORNEY

Regardless of whether the divorce is a bitter and litigated one, or somehow termed “amicable,” divorce attorneys should counsel a client to immediately execute or change the powers of attorney for medical decision-making and for property. The spouse they are divorcing should not be the one making life-and-death decisions should anything untoward occur. Similarly, the divorce attorney should instruct their client that with the entry of the divorce decree, the power that named that now-former spouse is revoked, and they really do need to execute a new power for medical.3

A recent Fifth District opinion emphasizes that the bonds of matrimony may be strained even in the best of times, and changing a power of attorney is warranted. In the Estate of John C. Hirschfeld, 4 the seven children of Mr. Hirschfeld’s first marriage brought a petition for an accounting when they learned that their father’s second wife had transferred a $3 million non-marital estate to herself under the power of attorney for property, leaving just $200,000 to be divided among his adult children. They alleged that these transfers were made as their father’s physical and mental health was failing, and their father and his second wife had a prenuptial agreement keeping their assets separate. The second Mrs. Hirschfeld argued that she was entitled to the presumption of a gift on all transfers by her of the decedent’s property to herself as spouse. The trial court agreed, relying on language from a 1951 supreme Court case, Miethe v.

3 If a court enters a judgment of dissolution of marriage or a legal separation between the principal and his or her spouse after the agency is signed, the spouse shall be deemed to have died at the time of the judgment for all purposes of the agency. 755 ILCS 45/2-6(b).

4 In the Estate of John C. Hirschfeld, 2023 IL App (5th) 2206030.

Miethe,5 examining arguments “under the theory that the presumption will apply between a husband and wife that – of a gift, and not a presumption of impropriety.”6

After wrestling with the bread-winner/care-taker and financially dominant partner constructs from this 1951 case as well as others from the early 1900’s, the appellate court reversed and remanded. The appellate court held the trial court erred in finding the presumption of undue influence and fraud may apply to a spouse holding a power of attorney, especially a spouse who engages in alleged self-dealing.7

So best practice is to ascertain that all powers reflect the client’s directives as soon as a divorce case is filed, or certainly execute new powers once the judgment is entered.

RIGHT TO EXECUTE OR CHANGE ESTATE PLANS DURING A DIVORCE

Certain spouses will attempt to name new beneficiaries before or during divorce proceedings to circumvent property that could rightly go their current spouse. Sometimes a new beneficiary is named to prevent the present spouse from inheriting; sometimes it is to name a fortunate new significant other as the insurance beneficiary. As for retirement benefits, a divorcing party will quickly find that ERISA intercedes, and they cannot change the named spouse as beneficiary on a employer retirement account without that other party’s knowledge and written consent. A beneficiary on an insurance policy, however, can be changed without the spouse’s knowledge. A party also can create or amend their will during divorce litigation to alter what their spouse could receive from the marital estate before a divorce is finalized. In re Marriage of Centioli,8 held that the husband could not be compelled to reinstate his wife as the beneficiary to his revocable trust in dissolution proceedings, even to conform with the status quo. The Appellate Court reasoned that the wife could very well be “undercompensated” if the hus-

5 Miethe v. Miethe, 410 Ill. 226, 231 (1951). “The general rule is that where a fiduciary relationship has been established, the burden rests upon the fiduciary to show the fairness of the questioned transaction. The rule that a presumption of undue influence is raise by the existence of the fiduciary relationship, however, is not applicable to conveyances from husband to wife.”

6 In the Estate of John C. Hirschfeld, 2023 IL App (5th) 2206030, ¶14.

7 Id., at ¶ 40.

8 In re Marriage of Centioli, 335 Ill. App. 3d 650 (1st Dist. 2002).

The odds are high that many a spouse, in the thick of divorce proceedings, has fantasized that if the other side just dropped dead, things would be a lot easier. Seasoned attorneys in both family law and probate know better.

band were to transfer all of his assets into a trust prior to his death, were he to die before the dissolution proceedings had concluded and judgment entered. If he died with the revised will in place, she would have to litigate the matter and her inheritance in probate court.9 That was not sufficient cause, however, to prohibit the husband from creating or revising a will of his own choosing, even while the divorce was pending. As Illinois law does not provide a spouse with “a right to an equitable distribution upon Gerard’s (husband’s) death,” the Court found that a spouse has no ascertainable right in the domestic relations court for injunctive relief to be named as a beneficiary in estate plans. 10

So while you can’t necessarily take it with you, you can certainly create litigation havoc for your spouse if you create a will or codicil to disinherit, and die during a divorce.

ENFORCEABILITY OF A JUDGMENT AFTER DEATH

Divorce proceedings and terms and the untimely death of a party converge in one of three ways: one party dying while the case is pending and unresolved; dying after judgment is entered but some issues have been reserved, and enforceability of a complete and final judgment after one party has died.

Section 401 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) states: (a) The death of a party subsequent to the entry of a judgment for dissolution but before judgment on reserved issues shall not abate the proceedings. The rationale for the rule is that the death of one of the parties to a marriage extinguishes the subject matter of the dissolution action. So, if a party does die during the proceedings, the divorce action abates entirely.11

Simply put, when a party dies during the divorce proceedings, the court no longer has personal or subject-matter jurisdiction to change a person’s marital status, so the matter is terminated. If a person dies after the dissolution judgment is entered but before all terms of the judgment are finalized and enforced, the parties were legally divorced, but the court retains jurisdiction to enforce the judgment terms.

Platt v. Platt is a relevant, 2015 decision from the Second District.12 Notably, the wife had joined the husband’s live-in girlfriend in the pre-decree proceedings, which facilitated enforceability. Husband and wife were divorced in 2013, and

9 Id., at 657.

10 See, however, In re Salviola, 2020 IL App (1st) 182185, in which husband secretly amended his revocable trust containing substantial marital property to remove wife as successor trustee and beneficiary directly before he filed for divorce; wife alleged that he liquidated the marital assets now in his trust and further argued that Centioli was either not controlling or wrongly decided; case was dismissed on lack of jurisdiction of appeal, not on merits.

11 See Bushnell v. Cooper, 289 Ill. 260, 264 (1919) (“Marriage is a personal relation or status... the action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both other the persons of the parties to the action and of the subject-matter of the action itself.”).

12 2015 IL App (2d) 141174.

the former husband died in 2014 without having executed the Qualified Domestic Relations Order (QDRO) to divide his government pension with his former wife. The late husband’s girlfriend, now wife, moved to dismiss the wife’s action, first arguing that the unsigned QDRO meant the divorce was not finalized (thereby mistakenly arguing that her marriage was invalid), but further stating that as the relevant party was deceased, and could no longer execute a QDRO, the wife had no ability to pursue her claim. The former wife’s motion to enter the QDRO was denied by the trial court.

The appellate court disagreed, finding that the former wife was entitled to enforce the pension provisions in the dissolution judgment. Because the court has continuing jurisdiction to enforce a judgment, even after a party’s death, the unavailability of a particular mode of relief was not a basis for refusing to enforce the judgment altogether. The former wife could seek relief and payment for her share of the marital estate, especially what she ought to have received from the QDRO, from the former husband’s estate and award of property.

A word of caution, however, that the time to seek enforcement of a judgment after the death of a party is critical. In another 2015 decision, In re Marriage of Ross, 13 the parties divorced in 1983, with the wife having custody of the three children of the marriage, and the husband was ordered to pay $300 a month in child support. The husband died from a workplace incident in 2008, and in 2012, the wife filed a petition in the domestic relations court for confirmation of a lien, to sell real estate, and for entry of a qualified domestic relations order, alleging the former husband owed child support, plus statutory interest, in the total amount of $65,976.46. The domestic trial court held that the former wife was entitled to attempt enforcement of any claimed child support arrearages against the estate.

In analyzing the claim, the appellate court recognized that Section 510 of the IMDMA states that a claim for child support is not extinguished by the death of a parent,14 but that the right to do so is governed in subsection (e) by the Probate Act of 1975 when the claim for support is made against an estate. This provision of the Probate Act trumps the IMDMA, and bars claims filed two (2) years after the decedent’s death. The appellate court thus held that the trial court had erred, in that the former wife’s claim to recover the child support arrearage was barred by the Probate Act and by the IMDMA, and the matter was remanded to the trial court with directions to enter dismissal of the wife’s petition for payment of the child support and arrearage, with prejudice.

CONTROLLING CUSTODY IN DISSOLUTION PROCEEDINGS AFTER DEATH

While the death of a party during the divorce proceedings terminates the divorce, the domestic relations court can retain jurisdiction for continued litigation for custodial

13 2015 IL App (2d) 130961.

14 750 ILCS 5/510 (d).

matters. In the case of In re Marriage of Milenkovic, 15 the wife filed a petition for dissolution of marriage and was granted a temporary restraining order (TRO) against her husband, as he threatened to kill her. Months later, she filed for a rule because he violated the TRO and again threatened to kill her. Just months after the rule was issued, she was shot to death, the husband was charged with homicide, and he was incarcerated.

A neighbor filed a petition for custody in the divorce action, and an order was entered that required husband to pay $60 a week to the neighbor for support of his two children. Along with that, an order was entered to sell the marital residence. The husband thereafter filed a motion to vacate all orders because he claimed the trial court had lost jurisdiction of all matters with the wife’s death during the proceedings.

Here, the appellate court found that the child custody provisions of the IMDMA amply authorized the circuit court’s jurisdiction, following the petitioner’s death, to enter the challenged custodial orders.16 The court treated the neighbor as an intervenor, as neither parent had custody of the children (mother dead, father in jail) under 601(b)(2), and that “the children’s needs did not abate upon the death of their mother; her death could only intensify them.”17

On the doctrine of parens patriae, empowering the court

15 93 Ill App. 3d 204 (1st Dist. 1981).

16 Id., at 210.

17 Id., at 213.

in extreme circumstances to guard the welfare of minors, the Court held:

[T]he death of a custodial parent after a final divorce judgment has been entered does not automatically revert custody to the surviving parent (Jarrett v. Jarrett (1953), 415 Ill. 126, 112 N.E.2d 694), even if that parent would be considered a fit parent (See Mackie v. Mackie (1967), 88 Ill. App. 2d 61, 232 N.E.2d 184). Thus, when a divorced custodial parent dies the court has the power to determine further custody transfers of a child even though the legal custody of the child is not in anyone immediately following the death of the custodian. (Mackie at 68, 232 N.E.2d at 188) This reasoning is consonant with the firmly entrenched concept that custody determinations must be predicated upon the best interest of the child. Ill.Rev.Stat.1979, ch. 40, par. 602; Sommer v. Borovic (1977), 69 Ill.2d 220, 13 Ill.Dec. 1, 370 N.E.2d 1028; In re Wheat (1979), 68 Ill.App.3d 471, 25 Ill.Dec. 7, 386 N.E.2d 278) 18

The court remanded the cause only for an evidentiary hearing on the husband’s ability to support the children other than by sale of the marital residence.

ATTORNEYS FEES AFTER DEATH

18 Id., at 212-213.

The death of a party, unsurprisingly, does not extinguish an attorney’s ability to pursue payment of fees. In re Marriage of Dague19 holds that even after a party’s death, the attorney in a divorce proceeding is a party in interest in an action, and has standing to pursue fees, and can pursue them after their client’s death. And in Dague, the attorney did continue the action for fees.

MY REMAINS. . .

A prohibition against your spouse delivering your eulogy, or even attending your funeral, can only be incorporated into a divorce settlement if there is agreement by both parties. These terms, especially if not agreed, may be better incorporated into an estate plan rather than wait for the finality of the dissolution of marriage and entry of a judgment. Rare is the case when you have to determine what happens with your corporeal remains in a divorce decree, but sometimes, it is better to be on the safe side.

In Rekosh v. Parks 20 the four sons of Eugene Rekosh

executed a will, disinheriting his four sons from his prior marriage, and bequeathing all property to his former second wife, June Parks, whom he also named as executor. Mr. Rekosh died a few months after executing the will, and Ms. Parks falsely represented to the funeral home that she was the widow of Eugene. She had Eugene cremated and “dumped in her backyard without notifying plaintiffs or securing their permission.”21 The sons, as next of kin, alleged a warm and affectionate relationship with their father, and claimed severe and permanent emotional harm and injury from their former step-mother’s unceremonious actions.

The Second District affirmed the dismissal of some of the claims, and reversed others, noting “[c]reamation of a corpse against the wishes of the next of kin, if done maliciously, out of ill will or spite, likewise would be conduct sufficiently outrageous to support that element of the tort (of emotional distress).”22 Presumably that must include dumping the ashes of your former spouse in your backyard.

Emotions may mellow over the years, and the rancor of

Help Your Bar Foundation Make A Difference!

As the authors expressed in an essay titled “Lawyers as Professionals and Citizens,” lawyers have a critical, ethical responsibility to provide services “in the public interest” and in furtherance of a “safe, fair and just society.” In a nutshell, that is the principal mission of your Lake County Bar Foundation.

The Lake County Bar Foundation is committed to continuing its support for worthy organizations and noble causes. And, of course, there always is more that can be done. With your support, we will be able to achieve that goal.

You can help by contributing time to support the Foundation. Please consider volunteering to serve on the Board or a Committee, or just participate in the Foundation’s philanthropic efforts. And, of course, please attend and support the Foundation’s events. Any comments or suggestions you have to help us further our goals are welcome.

Thank you for your continued support; it will help advance the Lake County Bar Foundation’s philanthropic efforts, and will be greatly appreciated.

Interview with Retired Judge David Brodsky

BY SHYAMA S. PARIKH

Ihad the honor to interview Judge Brodsky in January 2023 as he packed his chambers for his upcoming retirement. The Honorable David Brodsky majored in Political Science and Criminal Justice at Western Michigan University and later attended Law School at Chicago-Kent. Judge Brodsky knew early on that he wanted to work in criminal law and participated in his law school’s Criminal Law Clinic.

Through his work in the Clinic, he received the opportunity to be placed in an internship in the Lake County Public Defender’s Office with Jerry Block, a friend of one of his professors. He was amazed at the opportunities his internship afforded and recalls greatly benefiting from the opportunity to work “hands on” with attorneys and clients on serious cases, right away.

After graduating in 1985, Judge Brodsky was hired into the Lake County Public Defender’s Office by then Public Defender Mike Melius. Throughout his career he got the opportunity to supervise various divisions in the Public Defender’s Office and was eventually appointed as Lake County’s Chief Public Defender in 1997. Shortly thereafter he appointed our current Public Defender Joy Gossman to serve as his Chief Deputy and recalled working

along with her to modernize the office and promote the hiring of full-time Assistant PDs over short term contracts. During his time at the Public Defender’s Office, Judge Brodsky remembers working with different types of clients, including those dealing with poverty, mental illness, and drug addiction; his goal was to leave the client better than they came in and sought to address the underlying reasons that brought them into the criminal justice system, not just their legal issues. “Back then there were no Drug, Mental Health or other treatment courts to address these issues.” Judge Brodsky worked in the Lake County Public Defender’s Office from 1985 – 2007 when he was appointed to the bench. When asked about his biggest achievement, Judge Brodsky recalled his work with the death

Shyama S. Parikh has been an Attorney in Lake County, Illinois since 2003 and primarily represents clients in family law matters.

penalty on both the individual case and policy levels. During his career he litigated four capital cases to penalty phase verdicts, arguing before juries to spare his client’s life. He stated that no issue was too small preserve for review and remembers having to lay the groundwork for appeals through the State and Federal levels. He also vividly recalls participating in the death penalty reform movement in Illinois. During his tenure as the President of the Illinois Public Defender’s Association Judge Brodsky provided testimony to legislative and Supreme Court committees tasked with studying the Illinois death penalty, arguing for reforms and ultimately abolition. Judge Brodsky is proud of his efforts in exposing the weaknesses and problems with Illinois’ death penalty law and being part of the effort that ultimately led to its repeal.

The Honorable David Brodsky was appointed as Associate Judge in Lake County in March 2007. He was assigned to the Family Law Division in November 2007 and became intimately involved with families and children. Judge Brodsky felt this was a great assignment and taught him the limits of the law and what he could and could not do as a judge. He was very pleased to discover he was not done learning when he became a judge and firmly believes that one essential component to doing justice as a judge is the continued ability to grow. In fact, he recalls every division he went to feeling like a new career! His final assignment before retiring was to the Law Division. Judge Brodsky always wanted to be in a courtroom, loved working with juries and was fascinated with every aspect of how trials were conducted. Judge Brodsky took pride in assuring that each jury received the evidence and arguments in a fair and evenhanded manner and making sure that they were properly instructed so that all sides to a dispute received a fair trial. He loved working with jurors and found it important that they were satisfied with the process and that they felt that their time was not being wasted.

He remained a judge in the civil division for almost 8 years, up until his retirement. When asked about his legal mentors, Judge Brodsky mentioned Jerry Block, Marshall Hartman, Michael Fusz, Mitchell Hoffman, Vickie Rossetti, Margaret Mullen, and his assigned Judge Mentor, Judge Raymond McKoski, to name a few.

When asked about the decision to retire, Judge Brodsky states it was an extremely tough decision; this is a job that he loves and it is very hard to walk away from, not just the lawyers, but the amazing group of people that he works with. He goes on to call the judges he works with wonderful, smart, and intelligent people. He will miss the camaraderie and spending time with his fellow judges, but says he is at a time in his life to be with his wife and kids more. He doesn’t have any specific plans after retirement but wants to take some time to get to know himself outside of law and see what comes; he was on “someone else’s clock for 40 years” and is excited to see happens next for him. Judge Brodsky is interested in doing some mediation work, but plans to travel, spend some time at his cabin, and get more involved with his young adult children. His wife is very excited to have him home and they are planning the next part of their adventure together.

When Judge Brodsky was asked if he had any advice for lawyers and judges, he smiled and said, “What we do here is very important and I cannot overemphasize the immediate and significant impact of what we do.” He goes on to say that we have a huge impact on people’s lives, not to take that for granted and that you have to be “all-in.”

The Honorable David Brodsky has had a fascinating career and feels blessed. He is very proud of all that he has learned and looking back on his career could not imagine coming out of Law School and doing one, single, thing differently.

Thank you for service Judge Brodsky and we wish you all the very best moving forward!

Judge Brodsky was very pleased to discover he was not done learning when he became a judge, and he firmly believes that one essential component to doing justice as a judge is the continued ability to grow. In fact, he recalls every division he went to feeling like a new career!

Preparing Your Client for a Deposition

BY FIONA A. MCCORMICK AND KATHERINE A. MCCOLLUM

You receive a Notice of Deposition for your client, now what? First, check to see if a Rider is attached to the Notice of Deposition. If so, what are the items that are being requested? Are there documents and records that have already been produced? Are there documents and records that could be objected to in advance of the deposition?

Is the request for production of the documents prior to the deposition, or does it simply require your client to produce them at the deposition? Once you have answered these questions, you can begin to explain to your client what documents and records to compile and how quickly to do so. It is always important to review all the documents and records your client will be producing prior to turning them over to your opposing counsel and to think about possible questions that may be asked regarding the documents.

Second, you need to prepare your client for the deposition by providing your client with instructions for how to behave during a deposition. Even if the client has sat for his

or her deposition in the past, each deposition is different, and this is a step that shouldn’t be skipped. Provide your client with a list of general instructions that they can review and discuss with you prior to the deposition. Some general instructions are as follows: (1) tell the truth;

(2) speak clearly; (3) verbalize your answers, don’t shake or nod your head; (3) listen to the question being asked;

(4) it’s okay to say you don’t know, if it is true; (5) don’t offer up additional information that is beyond the question being asked; (6) read any document presented to you at the deposition prior to answering questions about it; (7) you can take a break if you need it, just not when a question is pending; and (8) do not guess about amounts, dates,

Fiona A. McCormick is a Partner at Del Re Law Group in Waukegan, Illinois. Ms. McCormick joined the firm in June 2012 and practices primarily in the area of Domestic Relations law.

Katherine A. McCollum is an Associate Attorney at Del Re Law Group in Waukegan, Illinois. Ms. McCollum practices in both civil and criminal law.

or other facts.

Notably, during the pandemic, the Illinois Supreme Court temporarily amended Rule 206(h), which governs remote electronic means depositions, to accommodate taking depositions remotely over Zoom. One of the changes suspended the requirement for the deponent to be in the presence of the court reporter. Given the difficulty in conducting depositions from different locations, a Committee Comment was later added to the amended Rule 206(h) stating that the deponent “may be examined regarding the identity of all persons in the room during the testimony,” that “[w]here possible, all persons in the room during the testimony should separately participate in the videoconference,” and that the deponent’s counsel “should instruct the deponent that (a) he or she may not communicate with anyone during the examination other than the examining attorney or the court reporter and (b) he or she may not consult any written, printed, or electronic information during the examination other than that information provided by the examining attorney.”

Based on these changes to Rule 206(h), if the deposition is going to take place remotely over Zoom or some other platform, you should update your list of instructions to address remote depositions. This list may include the following: (1) you must have your own device with working audio and video functions; (2) you cannot look at your notes or other documents while testifying; (3) you can only look at exhibits presented to you during the deposition; (4) you cannot communicate with anyone else during your testimony (verbally, written, or electronic); (5) you cannot access your cell phone, computer, email, or other electronic devices during your deposition (unless asked to do so); and (6) keep your audio muted and video off during any breaks. Providing your client with a list of instructions in advance of the deposition not only helps your client understand what will take place at the deposition, but also helps ensure you are properly advising your client of the rules prior to the deposition, especially in light of the abovementioned Committee Comments. The best practice, even if remote, is for you to be by your client’s side during the deposition.

Third, you need to prepare your client for the types of questions and topics that you believe will be asked during the deposition. For example, if the deposition is regarding financials in a divorce where dissipation is alleged, have your client review their bank account balances, specific transactions that are in dispute, the reason for the transaction, and the names of individuals involved in the transaction. Being ready to answer questions will

lower your client’s stress and will increase your client’s confidence in answering. Remember that for some clients, it could be the first time they have been questioned by opposing counsel and it could be a very uncomfortable situation for your client. The better your client does at the deposition, the less likely the matter will proceed to trial.

Fourth, it is important to explain to your client what your role as their attorney will be at the deposition. Often times, clients don’t understand that although you can make several types of objections during their deposition as their attorney, they may still have to answer the question that was asked. For example, while you can object to the question on the basis of relevance or hearsay, the client will still be required to answer the question. However, the client does not have to answer questions after objections made on the basis of attorney-client privilege or certain issues related to mental health or medical conditions. Your client must know that if you make an objection to a question, that they should not answer the question unless you instruct them to do so. If you instruct the client not to answer the question, your opposing counsel may ask the court reporter to certify the question. If the question is certified, your opposing counsel could file a motion asking the judge to rule on whether or not the question has to be answered. Certainly, not every deposition or client is the same, and you will have to tailor your approach to preparing your client according to his or her needs, the type of case, and any other variables that exist in the case. Regardless of these variables, preparing your client in any case will help ensure your client’s deposition goes smoothly.

…preparing your client in any case will help ensure your client’s deposition goes smoothly.

Lake County Bar Foundation Minutes

June 6, 2023

Present: Joann Fratianni (President), Kristie Fingerhut (Vice President), Perry Smith Jr. (Treasurer), Shyama Parikh (Secretary), Nicholas Riewer, Scott Gibson, David Gordon, David Stepanich, Louise Hayes, Hon. Michael Nerheim, Melanie Rummel, and Steve McCollum. Also present was Greg Weider, Executive Director of the LCBA and LCBF.

CALLED TO ORDER:

Meeting was called to order by President Fratianni at 4:01pm, a quorum being present, in person, at the LCBF office.

I. APPROVAL OF MINUTES:

Motion made to approve the minutes of the 3/21/23 meeting by Nicholas Riewer and seconded by Melanie Rummel. Motion approved.

II. TREASURER’S REPORT: Treasurer,

Perry Smith Jr., reported there were no unusual income or expenses. Perry and Greg met with Steve M. from Lake Forest Bank & Trust regarding monthly charges of $224 on our account, one of the monthly charges of $224 was successfully reversed, one was not, and one debit card was removed from the account in order to reduce the monthly fee. Currently, the LCBF accounts have the standard $250,000 insurance coverage under the FDIC. Discussion was had on what do with the funds we currently have. The options discussed were to obtain a CD, pay down the current loan on the mortgage, which is about $260,000 at this time, as well as the pros/ cons of sweep accounts. Further discussion was had on the roof that will inevitably need to be repaired and having monies available for same. A Motion to approve the

The

Meeting Minutes

Treasurers Report was made by Scott Gibson and was seconded by the Hon. Michael Nerheim. Motion approved.

WARRANT APPROVAL OF EXPENSES PAID:

The Warrants for Expenses were presented for approval. Motion made by Nicholas Riewer to approve the expenses and was seconded by Steve McCollum. Motion approved. Motion made by Melanie Rummel to set up a sweep account with Lake Forest Bank & Trust for monies over $250,000 and was seconded by Steve McCollum. Motion approved. Motion made by Melanie Rummel to pay $130,000 from the operating account to pay down the mortgage and was seconded by Scott Gibson. Motion approved.

III. NEW BUSINESS:

A. Fundraising Committee: The President of the Waukegan Historical Society, Laurie Nerheim, and Board Member,

BY SHYAMA PARIKH SECRETARY

Julio Argueta, personally appeared to present on the Waukegan History Museum at the Carnegie and discuss the Capital Campaign to Fund the Exhibits. The Museum is expected to open in early 2024 at 1 N. Sheridan Rd.; Waukegan, IL. The Carnegie Library originally opened in 1903, has sat dark for 60 years, and is the last Carnegie library in Lake County. The Park District and Historical Society have been working together to create Exhibit space, special event space, and classroom space where they will feature literary works and artifacts, with rotating exhibits. They are seeking Exhibit sponsors and will present to the LCBF the different levels of sponsorships and ways for us to contribute, once they finalize the sponsorships levels and amounts. The Foundation board will place this on the next agenda for the next meeting to further

discuss details.

B. Tax Returns: The final wrap up/modifications needed for returns prepared by Manning Silverman have been completed with the assistance of our new accountant and all of the fees have been paid. No extension will be needed for this year’s tax filing as we anticipate filing on time.

C. Property Tax Update: Our property taxes were $2,667.18, an amount lower than past years. We are waiting on the State to enter us into their system and it was not surprising that it is taking a long time for them to do so. Discussion was had about continued work with Amy Lonergan as she has been

assisting with the property tax issues and has been very successful. A Motion was made by Nicholas Riewer for Greg to reach out to Amy and inquire about charges for a year of services to assist the Foundation with the property tax issues and was seconded by Perry Smith Jr. Motion approved.

D. 2023-2024 Budget: A draft budget was presented by Greg, who is looking for feedback from the Board between now and the next meeting. The budget is similar to past years. Discussion was had to pay down the principal of the mortgage with the tax refund monies received, but it was agreed to table that discussion

based on the prior motion that was passed to pay $130,000 towards the mortgage from the operating account. At the next meeting, Greg will present a final budget to the Board.

E. Committee Assignments: President Fratianni presented and proposed three committees, Fundraising/Grant committee, Long Range Planning committee, and By-Law’s committee, and sought members to chair and volunteer for same. This will be further discussed at the next meeting.

F. 2023-2024 meeting dates: Discussion took place on future meetings and whether they should

be via zoom, in person, or hybrid. Most members preferred hybrid and it was agreed meetings would take place on the third Tuesday of the month, in odd months. The next meeting will take place on July 18, 2023.

IV. ADJOURNMENT: Motion to Adjourn was made at 5:06pm by Perry Smith and was seconded by David Stepanich. Motion approved.

V. After the meeting concluded, Joann Fratianni was administered the oath of office by the Honorable Michael Nerheim. The Board then participated in a group photo and a small reception took place.

Board of Directors’ Meeting

July 20, 2023

Minutes of the regular meeting of the Board of Directors of the Lake County Bar Association held in the executive conference room of the Lake County Bar Association, 300-A Grand Avenue, Waukegan, Illinois, on Thursday, June 15, 2023.

BOARD OF DIRECTORS

Katharine Hatch President

Daniel Hodgkinson

First Vice President

Kevin Berrill

Second Vice President

Richard Gellersted Treasurer

Jeffrey Berman Secretary

Tara Devin Immediate Past President

Jeremy Harter Director

Jeffrey O’Kelley Director

Sarah Raisch Director

Judy Maldonado Director

Hon. Bolling Haxall Director

Greg Weider Executive Director

The

CALL TO ORDER

President Hatch called the meeting to order at 12:11 p.m.

ROLL CALL

Roll call indicated a quorum was established, with the following individuals present: Katharine Hatch, President; Daniel Hodgkinson, First Vice President; Kevin Berrill, Second Vice President; Richard Gellersted, Treasurer; Jeffrey Berman, Secretary; Tara Devine, Immediate Past President; Jeremy Harter, Director; Jeffrey O’Kelley, Director; Sarah Raisch, Director; Judy Maldonado, Director; Hon. Bolling Haxall, Director; and Greg Weider, Executive Director.

ACTION ITEMS

• Consent Agenda Items

Meeting Minutes

the draft minutes.

• June New Members and Membership Report

The New Members report as of June 14, 2023 was included in the Agenda packet, along with a full Membership report as of June 14, 2023. A motion was made and seconded to approve the Consent Agenda. Upon unanimous voice vote, the motion was declared carried. The Consent Agenda is approved.

•Treasurer’s Report

BY JEFFREY A. BERMAN SECRETARY

financial results of the Golf Outing was included in the Supplemental Agenda Packet. Treasurer Gellersted and Executive Director Weider made a further presentation concerning the Golf Outing. Discussion followed.

NEW BUSINESS

• LCBA Website

•

June 15, 2023 Board of Directors Meeting Minutes

The Draft minutes from the June 15, 2023 meeting of the Board of Directors was included in the agenda packet. There were no requests for other additions, corrections, or changes to

The June 2023 Financial Report and supporting materials were included in the Agenda packet. Treasurer Gellersted made a presentation regarding the June 2023 Financial Report. Discussion followed. A motion was made and seconded to approve the Treasurer’s Report. Upon unanimous voice vote, the motion was declared carried. The Treasurer’s Report is approved.

OLD BUSINESS

• Golf

Summary

Outing Event

A summary of the

President Hatch and Executive Director Weider made a presentation concerning a possible plan to update and enhance the LCBA website. The Bar Foundation has expressed an interest in participating in that effort, including contributing to the financial costs of the upgrade. A committee will be formed to investigate the idea, and will include members from both the LCBA and LCBF. President Hatch, Director Raisch and Director O’Kelly volunteered to serve on the committee. Discussion followed.

• Illinois Association of Court Clerk’s Annual Conference

Information received from the Lake County Circuit Court Clerk regarding the upcoming annual conference of the Illinois Association of Court Clerks, and related sponsorship opportunities was included in the Agenda Packet. President Hatch and Executive Director Weider made a related presentation. Discussion followed.

• Possible Pie Contest Director Mandell presented a conceptual proposal to the Board for the Association to hold a pie contest, similar in nature to the Chili Cookoff, as an additional LCBA social event. Discussion followed. A motion was made and seconded to move forward with investigating the possibility of holding a pie contest event. Upon unanimous voice vote,

the motion was declared carried.

OTHER MATTERS

• Committee Liaison Reports

Board members provided Committee updates.

• Executive Director Report

Executive Director Weider presented his Executive Director Report for July, including providing an update on membership renewals, and upcoming scheduled events.

ADJOURNMENT

A motion was made to adjourn. Upon unanimous voice vote, the motion was declared carried. The meeting concluded at 12:40 p.m. The next Board of Directors Meeting is scheduled to take place on Thursday, August 17, 2023.

The Start of Autumn Means it’s Busy Season at the LCBA

For me, September signals the beginning of Fall. Children are back to school; the Cubs are making a push for the post season and the Wisconsin Badgers gearing up for a run at a Big Ten Championship. Cooler days are just around the corner and the scenic change of seasons in our outdoor spaces

will be here before we know it. September is also the month in which we celebrate National Constitution Day. Since 2004, September 17th is the day our Nation celebrates the document that establishes our government, provides for checks and balances and protects individual liberties. Constitution Day provides an opportunity

to reflect on our history, consider the challenges before us and appreciate the enduring grand experiment we call American Democracy.

Fall also is the beginning of the Lake County Bar Association program year. LCBA practice committees will begin a regular schedule of monthly meetings providing important discussions on the practice of law and engaging in continuing legal education opportunities. I would like to thank all the LCBA committee chairs for taking the time to lend their leadership to our committee work. Their time and the expertise are much appreciated. The first member luncheon of the year will be held on September 19th. This Lake County Update will provide important information on current issues in Lake County’s legal community as well as provide an opportunity to network with colleagues.

DIRECTOR

September also brings the second annual LCBA Cubs Game Social. Sponsored by the Young and New Lawyers Committee this event provides all LCBA members the opportunity to connect with other professionals and enjoy a Fall afternoon at beautiful Wrigley Field. The month concludes with the Fall Criminal Law Seminar in Lake Geneva, Wisconsin. A great line up of speakers are in place and I would encourage all who are interested in the practice of criminal law to attend. The coming LCBA program year is filled with network working opportunities, educational seminars, and social events. I hope you will make the most of your LCBA membership and not only attend but get involved. The strength of our organization is our members. Thank you for your membership in the Lake County Bar Association.

Director’s

Monthly

Committee Meetings

• 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.

300 Grand Avenue, Suite A Waukegan, IL 60085

Tel: 847-244-3143

Fax: 847-244-8259

MEMBER RECEPTION

MEMBER

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.

LCBA Member Receptions will generally be held on the 4th Thursday of every month. Contact info@lakebar.org to add your name to a reception.