The Rockford Litigation Lawyer

Trust Matters in Client Relationships

Tim Whitham — Wed, 10 Feb 2010 10:10:00 -0600

Client relationships are always the most crucial part of any legal practice. I think even more so in the area of litigation. The bond of "Trust" is very critical as the client's case moves through its various phases.

An interesting blog post on The Trusted Advisor, Innovation: The Critical Link to Trust highlights the need for trust as companies look to innovate and create.

If you are optimistic, you are a creator. If you are pessimistic, you are a victim.

Paraphrasing, high-trusting people believe that life is good, and that they are in control of their lives. Non-trusting people believe life is fundamentally unfair, and that other powers are in control of their lives.

You want to increase innovation? Hire optimistic, high-energy people; shun conspiracy theorists. And why does this work? Because they trust each other.

How wonderful the world would be if we could all be around such optimistic people all the time. I just listened to someone today who commented his son was thinking of going into law. He told his son to go into any area other than Personal Injury or Medical Malpractice so he would be around happier people. I know, obviously he has not met your clients (or mine).

Trust is what assists us in helping make our clients happy or at least in their accepting of what life is throwing at them. We sometimes need to overcome the "conspiracies" to help them accept the life is not always fair. I have found that the trust I have built with a client assists them in accepting the outcome of their case regardless of what that may be. I also know that I can not please everyone no matter what trust level we have built.

If you want to increase your business, if you want to build your litigation practice, Trust must be built and maintained in all your relationships.

Can that really happen? I hope only in Ford County

Tim Whitham — Mon, 01 Feb 2010 09:00:00 -0600

I just finished another John Grisham novel, Ford County. It is a series of short stories, which is unusual for John Grisham, but was thoroughly entertaining.

His unique way of weaving the legal and life issues together is what sets his writing apart from many others. In this series he dealt with the death penalty, taking advantage of the elderly (with the assistance of an attorney), a one night crime spree and the social issues of AIDS. I have to admit while it was an easy read, he still made you think.

I could see where some of these stories were either the basis of his novels or were in the same line of thinking that spawned them.

The book is one of this newest and an excellent one to pick up.

What state is our Criminal Justice System in?

Tim Whitham — Mon, 01 Feb 2010 08:00:00 -0600

It is an interesting question. It also one that was addressed over ten years ago in the book Guilty: The Collapse of Criminal Justice by Harold Rothwax. Then I came across the blog out of Tennessee that stated Why the Criminal Justice System is Broke in Tennessee by Rob McKinney. Both bring up excellent points of how politicians are constantly trying to "fix" the system. But is the system really in need of repair? At least to the extent the politicians think?

In my own locale politics has even entered our judicial system. Not one who likes to state his political views to loudly, I am concerned though about the race for one of our judges seats. In the race is a politician who, in the over ten years I have been in this area, I have not seen in a court room. I didn't even know he was an attorney. I knew he was a State Representative, but not a practicing attorney. Now at age 65, he claims to have all this wealth of knowledge able to make him a judge. Sometimes you just have to wonder. Like Tennessee, our ads have been the same, ready to fix a system I didn't even know was broken (again).

Sometimes, I think the repairs are from the damage we cause ourselves and not from a "broken" system.

Another example in our local community is the recent disclosure of a survey taken inside our police department over 4 years ago. The city fought, in court, to keep it confidential (and lost). Now, this week it is out and there are no big surprises. We, the community, knew there were problems inside the department, but the city wanted to keep it quiet. Why? Even our local paper's blog wondered that.

Society views some of this with true scepticism. And so they should. Politicians win on campaigns that state a problem, whether it exists or not, and the solution they can bring to it, whether true or not. My only request is the same as Rob McKinney, we should not be your politicial football that can be tossed back and forth as you please.

Sorry for the Delay Your Honor...but

Tim Whitham — Sun, 31 Jan 2010 20:29:31 -0600

I apologize for those who may follow my blog. I have been a little preoccupied after the beginning of this new year. Subsequently, I have neglected my followers. I came across Amy Campbell's blog post this evening and she gave me a good excuse to remedy my situation.

The solution: I want to put good content forward and not just advertisements for me or my practice. Thus, I was awaiting the proper moment (and need) to write something.

Well, I must admit, I just needed to sit down and say this needs to get done. As a judge would tell any good litigator, the excuse is good, but you still need to complete what the order requires. Or I don't care what your excuse is, get it done!

So thank you and enjoy!

Another Ruling on Supreme Court Rule 431

Tim Whitham — Tue, 12 Jan 2010 09:56:29 -0600

Another Appellate Court decision regarding the questioning of jurors under IL Supreme Court Rule 431 has recently been decided. This case, People v. Magallenes, has now stated that a violation of Rule 431 is not per se grounds for an automatic reversal.

In this case it appears the court did ask the fourth part of Rule 431, but did not do so for each individual juror. The court held that there was no prejudice to the defendant.

Again, I am awaiting an IL Supreme Court case on this Rule.

What is the True Story? or the Real Facts?

Tim Whitham — Wed, 23 Dec 2009 09:28:20 -0600

During this time of year, I don't know about you, but I enjoy a white, snowy Christmas in my part of the country. I enjoy getting together with family, buying presents for my kids, seeing a child's face on Christmas morning when they see the presents under the tree and the overall optimistic atmosphere of the season. Yes, I said "optimistic."

Watch the myriad of "Christmas" or "Holiday" programs that come across your television this season. The stories are varied, classic and just plain fun to watch. (I can't help but watch a Charlie Brown Christmas over and over again). What is common to each story at this time of year is the ending. Each ends with everyone "happy," the situation resolved, or just plain a tear jerk er that leaves you satisfied there is some good in all of us.

Now, what does all of this have to do with Litigation? Well, think about the stories we try to tell to the juries. What story do we try to relate? What is our goal? First, we try to paint a picture or tell the story that shows how our client is really the party who should win this case. Then we try to persuade that the evidence supports our client. Then we finish by telling the story based on the "facts" of the case. This model is for both the prosecution and the defense of a case.

So, at this time of the year, I ask the real question every juror is asking of you (the attorney or client) - what is the true story? I am not going to go into a recitation of Linus from the Peanuts (even though I do agree with the story). But, I think if you look at all the "holiday" specials, you see one theme that yours and my jurors like - good wins, people are overall good, that we all want the best for our lives not just this time of the year, but all year.

So now, our goal is to present the facts of our case to jurors so they will decide the "good" that is to come by their verdict. Not an easy task no matter what time of the year it is. The real question the juror is facing from all the perspectives of the witnesses is "what is the real story?"

Enjoy your Holidays! Have a Merry Christmas and Happy New Year!

Dear Santa, What is a Dog worth?

Tim Whitham — Thu, 17 Dec 2009 10:54:42 -0600

Well, they are not Santa, but the Vermont Supreme Court will decide this question and hopefully give us a great answer we can bring to our courts throughout the country. The Associated press ran this article this morning. After several weeks of being busy before the holiday and now looking for something to write about, this article caught my eye.

I know I may not get the votes from all you pet enthusiasts, but it is just a dog. I know, they are companions, they are family members (cough, cough), but now we are going to sue for emotional distress and loss of companionship?

Less you think I hate all animals, I don't. I am a dog owner. Actually two of them. One of them we rescued from a no kill shelter. But, if my dog wandered off onto another persons property and was killed - I don't know if I could seek additional payment based on how I felt about my dog. The article does bring up a good argument of where do we draw the line? Horses? Cats?

I understand being justly compensated. But, I have a hard time with the premise of this case. Call me cold hearted or at this time of the year a Scrooge or Grinch, but really - it's a dog!

Well we will have to wait and see what the Vermont Supreme Court thinks!

Thankful for Our Legal System

Tim Whitham — Thu, 26 Nov 2009 11:51:36 -0600

Happy Thanksgiving!

This is the day we ask ourselves "what are we thankful for?" I know the economy is not at the level of productivity we like and for many of us this has been a year of struggling through many personal and professional challenges.

I am thankful for our legal system during years like this. It gives individuals and companies the assistance to overcome some the obstacles our economy has presented them.

Our system helps people obtain help with their finances (bankruptcy); protects the rights of individuals and victims (criminal system); protects property rights (civil law, landlord/tenant, foreclosure); and has a role in families (juvenile, family, adoption).

Our system is not perfect. I can't say that I know all about other countries and their legal systems, but I am thankful that our system. I am thankful for the system that gives everyone a voice. The outcomes may not make everyone happy, but it does give everyone a chance to be heard.

So, what are you thankful for today? No matter what it is, have a great day just giving thanks!

Technology in the Court Room

Tim Whitham — Tue, 10 Nov 2009 10:47:01 -0600

Law on Display: The Digital Transformation of Persuasion and Judgment - This book title just came across my feeds. It sounds interesting as I see more and more technology entering the courtrooms in our area. I will let you know once I get a copy and read through it.

Check out the Law.com to get their take on it.

Saving Documents in the Digital Age

Tim Whitham — Wed, 04 Nov 2009 14:00:00 -0600

An Arizona Supreme Court Case now rules Metadata is discoverable for public records. In Lake v. City of Phoenix the Arizona Supreme Court ruled that metadata is discoverable if the document in digital form is given in discovery.

The blog Electronic Discovery Law has an excellent entry on this topic.

This topic will continue to be of interest as more and more businesses and government bodies go "paperless" in the future. Litigation firms would be wise to keep up to date with the current case law and statutes on this topic.

Preparing for the Certainties of Business Life

Tim Whitham — Tue, 03 Nov 2009 08:13:51 -0600

When you sit down with a client to go over their business papers, the last topic discussed is the closing of the business, the future sale of the business or the possibility of a partner taking over without consent of the other partner, and the list can go on from there. I recently came across a research paper, "Unprepared for the Unthinkable," from Inc. magazine that is a must read for small business owners. It is what Inc. Magazine is calling their "white paper" and requires a free small sign on information to obtain it.

The paper is well worth the sign on. It is clearly and concisely written. The facts it brings to the business planning are great.

About 40% of business owners are financially prepared in the event their partner(s) dies. Only about 15% are prepared if their business partners are disabled.

So why are so few businesses addressing the issue? The survey says, "cost."

If a business partner died, almost a third of those surveyed said they would work it out. Meanwhile, the same sentiment was expressed by a fifth of the business owners when it came to disability.

As a lawyer, I know our costs can seem steep as an entrepreneur is setting up his business and pouring his blood, sweat and tears, and a lot of his own money, into his new venture. But, you can either pay the cost up front in the preparation of documents or pay later to undo the mess afterward.

Although this (working it out) is a very noble sentiment, in our experience it just never seems to happen - at least without lawyers present. More often than not, the result of "working it out" is far more costly and disastrous to the business than if the business owners took action before the fact.

So, lawyers do help! But to avoid the unknown - prepare and plan ahead of time as best you can.

DEFINITELY NEED to Follow Supreme Court Rule 431(b)

Tim Whitham — Wed, 28 Oct 2009 16:26:23 -0600

Two more Illinois Appellate Court cases have just been published regarding the Illinois Supreme Court Rule 431(b), People v. Arredondo and People v. Madrid. These decisions affect criminal cases in regards to jury selection. The appellate court is not giving any lee way in regards to the trial court not following the rule specifically.

Seems a little harsh in light of the evidence against the defendant in these cases. But, how do you balance the victim's rights to protection and a defendant's rights to a fair trial without enforcing the rules?

It will be interesting to see if the Supreme Court will get a chance to weigh in on this matter.

Electronic Evidence - Confession?

Tim Whitham — Fri, 23 Oct 2009 09:00:00 -0600

The Supreme Court of Indiana upheld the conviction of man convicted of killing his fiance`s two-year-old daughter with evidence obtained from the killer's MySpace page. See the article - MySpace Entry Admitted as Murder Evidence at Law.com.

You would think after the many years since George Orwell's book 1984 was written we would have been more careful about what big brother can use and see.

It never ceases to amaze me.

Evidence and the Treatment of Witnesses

Tim Whitham — Mon, 19 Oct 2009 09:34:30 -0600

I knew when I used the word litigation in the title of this blog people may have had a hard time comprehending what does it exactly mean? Simply a lawsuit or having a case heard in court. Simply to have your day in court to have the wrong against you corrected or to be able to present your side of the issues. I found two cases in the news today relating to the rights of a university project that is seeking the vacating of a conviction over 30 years ago and a local lawsuit now filed that seeks damages for the handling of a police investigation. I give no opinion, I think, on either case, I only highlight them for the availability of the parties to use a system to continue to protect their rights (30 years later) and to compensate a wrong they feel was committed.

The Chicago Tribune is reporting that Northwestern University Medill Innocence Project is fighting a subpoena for class records relating to the students who compiled the report of the wrongful conviction of Anthony McKinney. See, Northwestern University in standoff with Cook County Prosecutor.The subpoena not only seeks notes of interviews, but also the students grade information and class syllabus. The case has not gone to argument yet, so it will be interesting to watch the court's ruling. This case has implications beyond the clearing of an individuals criminal record and conviction, but also, what is discoverable when an independent "journalism" entity takes on an investigation?

The Rockford Register Star is reporting that another lawsuit is on file against the City of Rockford for a police involved shooting - Church Leaders sue City over Shooting. This lawsuit was filed by the church for the officers handling of the witnesses and children at the scene. It will be interesting to see how this lawsuit plays out in court for the emotional argument aspect of witnesses to a police involved incident.

I don't think there are any easy answers to these cases. We don't like to see innocent people get convicted and we don't like to hear of witnesses being mistreated. But what is the answer? We have a judicial system to address some of these issues. But, are some of these issues bigger than our system or is there another venue where they can be addressed?

Litigation costs, but it also protects. Litigation, working within the guidelines of the system, gives everyone a voice, but "using" the system inappropriately wrongs the person and the system. I don't know the answer, I can only attempt to work with the system that is in my opinion the best in the world at what it does - gives those who feel they have been wronged a chance to be heard and compensated for the wrong.

How do we "Show" we are Civil in Law?

Tim Whitham — Thu, 08 Oct 2009 13:11:23 -0600

It never ceases to amaze me each day some new story comes out about the judicial system, with another slap at it.

In this case, it was the "taking" of baseball from a 12-year-old. She just happened to catch the 200th home run of one of the Phillies batters. See the article at Fanhouse.

I wasn't so upset with the article or how the parties handled themselves. It was a little disconcerting the baseball throws away so many baseball's during a game, but when an important ball is needed they will go out of their way to obtain it for them and not think twice about the fan. Well, enough said about that.

My beef with the article was the last line.

The lesson: when in doubt, sue somebody.

I guess I am a little miffed that just suing someone. It is the old mindset that attorney's are just out to get whatever they can and will sue anyone for anything with no legal basis. Our system may not be perfect, I understand the some attorneys may not be as ethical as they should be, but I would hope that with checks and balances our system has we don't just sue when in doubt. That in fact we sue when our client has a valid legal claim and reason to do so.

In this case, I think this young lady did have a reason to be justly compensated. I also think the way she is portrayed as being treated by a "bigger" organization, should raise some red flags. Life is not always fair, but the law can remedy some of the unfairness. Everyone needs to be treated fairly and deserves a system that tries its best to do just that.

Court Looks Down on Attorney's Behavior

Tim Whitham — Wed, 30 Sep 2009 11:03:06 -0600

I had an attorney who had been practicing law for 30 years tell me once, " You should go into court on a motion expecting to lose. That way if you do lose, you are not surprised or upset and if you win, you do not gloat too much."

The frustrations of litigation though can be taxing. Trial practice is the most nerve racking. You prepare many hours just before trial on a case that you have been working on sometimes for years. Then within 3 days or two weeks it is over with. If the verdict is in your favor, you may be very pleased, but if not -- well a decision to appeal and if you can appeal may be coming.

Sometimes, it is the decisions though made during trial that can be the most frustrating. You have little, if any, time to react to the judge's orders. Depending on the court rules could have a sizable impact on your case and how you are going to proceed. But, you must proceed within the parameters set out by the court.

A recent Illinois 4th District Appellate case, Thomas v. Koe, highlights these factors. I feel for the plaintiff's attorney who had some rather poor decisions made by the trial court. However, the attorney's actions also were brought into question, the trial court ultimately holding him in criminal contempt of court.

This case highlights the tension that is raised in trial work between a balance of proper evidence, the judges decisions and then how do you put on your full case to the jury after those decisions. We all know appeals are available after the trial, but it would be nice to have the issues before the jury so an appeal would not be necessary.

So goes the life of a trial attorney.

$15.5 Million Dollar Settlement Reached for Local Case

Tim Whitham — Tue, 15 Sep 2009 11:42:40 -0600

The Rockford Register Star is reporting a settlement was reached for all but one of the parties who sued the Winnebago County Sheriff's Office as a result of fatal car accident involving one of their deputies.

It appears the widow of one of the parties killed, and the family of two of the other victims have reached a settlement. There is still one case pending for a 15 year old who was killed in the same crash.

There are no quotes from the attorneys representing the parties. It will be interesting now to see what the public has to say as the settlement will require bonds to be issued to cover the amount over the insurance policy amount of $5 million.

I still think a settlement in this case was better than a trial. There was already a criminal trial that rendered a not guilty verdict, but a civil trial would have brought out more evidence and testimony. This I am sure would not have been as favorable for the county.

As with any litigation, hopefully, the parties can now move forward from this point.

What is it I can get?

Tim Whitham — Thu, 10 Sep 2009 21:52:47 -0600

The world of Litigation is full of unknowns. You prepare for the hearing or trial and still there are many "new" things that come up the day of or in court that you do not expect. But, these really are the expectations of being involved in litigation. In issues involving the law or facts, these "unexpected" things can be dealt with usually without much trouble.

The truly unexpected is the client - they want some type of guarantee or even a good guess of what the judge or jury will decide. Sometimes these expectations are valid based on the facts of your case. Other times, there is just no way of knowing for sure what the outcome is even likely to be.

The clients though may have their position laid out for you. They know how you should present their case. They know what evidence you should put in front of the court and they know exactly what you should say. What they don't realize is that a majority of what they want in front of the court is not allowed by rules of evidence, what they want said is considered hearsay and they have no witnesses to prove the statement or their evidence is irrelevant or not allowed at all.

The tough part for any litigator is client control. Not that all clients are ridiculous in what they ask for, but the attorney needs to make sure from the beginning of their relationship with the client to make sure the client understands what some of the rules are in their case, what evidence is necessary to prove their case and what a realistic outcome may or may not be.

I have found though even after a good initial meeting and conversation, reminders of expectations are still necessary .

The quote of the day from Trusted Advisor is right on for the Attorney - Client relationship.

Without trust, you're left to compete only on features and price, features and price — along with everyone else.

Suspect Identification

Tim Whitham — Thu, 10 Sep 2009 21:36:04 -0600

Picking Cotton by Jennifer Thompson-Cannino, Ronald Cotton with Erin Torneo is an excellent read for those in the legal field, especially if you are practicing in Criminal Law. For those not in the criminal field, it is a great book on the ability to forgive and accept forgiveness.

As a former police office and prosecutor, I was a little nervous about the premise of the book. But once I started reading it I didn't want to put it down. I wanted to know how and why these two people could ever become friends after what happened. I give Ronald Cotton some credit for how he took life in stride and made a life for himself after all of this happened. I also give credit to the all three of the authors for not just picking apart the criminal justice system and blaming the police for their investigative "blunders."

I am not going to tell the story behind the book. That is for you to find out. But it will be worth it for you to pick it up.

Another Note on the Dog Days

Tim Whitham — Tue, 01 Sep 2009 09:00:00 -0600

I guess I am not the only one who feels the "crunch." I am glad there are others who still keep the blawg life going as well, even after a vacation.

See Mark Loftus' post on "Glad to see I have beaten the odds."

See, you later this week and the next, and then another....