Blog

One thing I am constantly struck by is how the world is changing more rapidly than ever before.  Just think back to even a few years ago and now fast forward to today and think of all the apps and things you can do that you couldn't do before, to say nothing of comparing today's landscape to 10, 20, or 30 years ago.  I still think back to when I was in law school and I knew one (yes 1) of my class mates had a computer.  We used to hire typists to type our papers.  Yes, on typewriters, something I actually took a class on in high school, quickly increasing my speed from abysmal to lousy.

Well, there seems to be a constantly shifting landscape as far as what is private, what is out there for all to know, and who, if anyone, controls this decision.  One only read a bit about the workings of Facebook and Google to wonder whether there is any data they don't collect!  But before raving in paranoid fashion about the advent of George Orwell's 1984 becoming today's reality, I thought I'd address a case pending right now in Chicago that has much to do with what the public has a right to do, and which will address where exactly the line might be.

The Chicago Tribune's story on the artist who recorded his arrest by police demonstrates some of the arguments on both sides.  In 2009, an artist named Chris Drew was selling art without a permit on a Chicago street when he was arrested by a Chicago Police Officer.  Drew made an audio recording of this interaction with the police officer using a recording device in his pocket.  This resulted in a charge of eavesdropping on a public official, a charge that can result in up to 15 years in prison.  Drew and his attorneys are arguing the law is unconstitutional because the public has a right to record what public officials are doing. 

Illinois is one of the few states that requires all parties to a recording to consent to it.

The opposing view is represented by a bill recently introduced by Elaine Nekritz (D-Northbrook) in the Illinois House that would expressly allow recording of police officers who are doing their jobs in public.  This also comes on the heels of an August acquittal by a Cook County jury of a woman charged similarly with recording two internal affairs officers who she believed were trying to dissuade her from pressing a sexual harassment charge against a police officer.  It has also been argued by some that there could be occasions where large mobs of people could use video or audio recording of police actions as a method of intimidating or baiting officers.  A U.S. appeals court is considering a separate challenge and a Crawford (Illinois) County judge in the fall dismissed similar charges and found the law unconstitutional in a similar scenario.

The decision on the Drew case will be made by Judge Stanley Sacks is expected shortly, although it is bound to be challenged in higher courts.

This brings us back to the whole privacy thing.  In theory, police who are doing their jobs in public (and are being paid by us) should have no expectation of privacy.  But is it possible for a mob of say 30 people to start yelling at and baiting an officer who is trying to arrest someone in a hostile environment?  If one can record a police officer, what about a school teacher or a judge?  Does the public have a limitless right to know and how does all this fit into the new paradigm of a 24/7 news cycle, Twitter, Facebook, and constant sharing of information?  And, if all this recording is allowed and deemed constitutional, is there any limit for which this information can be used?  Think also of how people change their behavior when they know they are being recorded versus when they don't.  With cameras coming to some selected Illinois courtrooms in a pilot program, this will soon be tested.

One issue that is a constant and growing issue is the use of social media by lawyers and their clients.  A recent workers' compensation case was denied because of "incriminating" photos posted on Facebook.  As Shakespeare said, "all the world's a stage," so it stands to reason that if you are claiming you are so injured you can't go grocery shopping but post photos of yourself tossing a turkey around at Jewel, you could be harming your credibility and your case.  What if you claim you've never talked to a witness about how the accident occurred but they turn out to have lots of Facebook or text messages where you discuss this very thing?  Is it okay for a juror to "friend" a lawyer during a trial?  There are a plethora of potential issues here.  Let's face it, I just wanted to write "plethora."  And that doesn't even open the other can of worms with the Stevenson High School drug dealing ring that school officials apparently cracked by confiscating phones of students and browsing their texts. 

Without taking sides, it is certainly more of a headache or slippery slope than the very specific case represented by the artist Chris Drew. 

I suppose I am guilty of being one of those darn lawyers who can always see both sides to every issue, and is seen as mealy-mouthed by those straight-talking resolute folks but this particular issue seems to me to need some stricter guidance.  Perhaps legislators, judges, and others are stepping up to the plate to define the limits of this. 

Either way, I'd love to hear your thoughts on this and I expect they'll span the spectrum. 

A pilot program announced by the Illinois Supreme Court recently will allow some circuit court proceedings to be recorded. 

Cameras in the courtroom, it would seem, would lead to transparency, allow those unfamiliar with the judicial process to learn what the real thing looks like (say, as opposed to Judge Judy), and overall enhance the appearance of fairness and justice with this new openness.

However, much as scientists have long noted that just the act of observing a human subject that knows it's being observed changes that subject's behavior, it is also very possible that cameras in the courtroom might do this to witnesses, judges, and lawyers.  Ameet Sachdev's Chicago Law column in the Chicago Tribune highlighted one trial consultant's take on it.

Alexandra Rudolph, a Chicago trial consultant, points out that "(W)itnesses are much more self-conscious when there is a camera involved.  They don't know whether to look at the judge, the jury, or the camera."  She goes on to note that witnesses are often more stressed due to concern over how they look on camera, how fluently they speak, and seemingly "unimportant" details like that.

She also notes that jurors are affected by cameras even though they know they are not being recorded.  "The camera takes on its own personality.  Everybody is aware of it."

Certainly some attorneys are completely comfortable being "on stage," and it is not hard to imagine how the already-theatrical and over-the-top personality of a Sam Adam, Jr. would be perfectly suited to a televised courtroom proceeding.  Most trials, however, are numbingly boring, confusing, repetitive, and generally do not feature the beautifully dressed and ultra attractive "television lawyers" populating shows like The Good Wife (prosecutors generally do not wear custom made $3,000.00 suits...but then again no one else does either!).

So while this "sunshine" makes a great deal of sense at first glance, it may turn out to either bore the daylights out of the viewers, or, more significantly, change the behavior of witnesses, judges, or lawyers.  Many law firms, especially those that defend automobile negligence claims for "substandard" insurance companies, have actively sought attractive and well-dressed attorneys to serve as their trial lawyers.  Many jurors and witnesses become fixated on the admittedly good looking lawyers that they tend to want to "help them out."  This is something jurors have confided for years and those defense firms have changed the dynamic of trial.  Certainly, cameras in the courtroom could be a great thing for the public at large, especially in high profile cases like the recent trials of former Governor Rod Blagojevich or Springfield Power Broker William Cellini, a trial that featured a juror who basically hid her criminal past.  Would cameras have made her even less forthcoming or more so? 

In my years as a lawyer, I've certainly seen and heard many interesting, incendiary, and sometimes downright funny things during court proceedings.  It would take a sociologist to determine whether any of those moments would have occurred exactly as they did if the actors involved knew they were being watched, recorded, and filmed.

Soon, we'll get to find out.

Feel free to email me with your comments.  I'd love to hear them!

I am very proud to announce that the Chicago Bar Association Solo and Small Practitioner Committee is having its monthly meeting Tuesday February 7th at 12:15 p.m. at the Chicago Bar Association, 321 South Plymouth Court.  The meeting will also be webcast.

As I am both co-Chair of the Committee and also one of the panelists, I am delighted to share what I know and excited to learn from Ken and Dan.

Please attend and also note that this month if you bring a guest, you qualify for free CLE credit and enter to win a Lettuce Entertain You gift card.

The entire announcement is below.

THE CHICAGO BAR ASSOCIATION

Committee Meeting Announcement            

Earn FREE IL MCLE from Your Desktop with New Webcast Committee Meeting Option!

View a live webcast of a CBA or YLS committee meeting and earn Illinois MCLE credit - without leaving your office or home and at no extra cost. Members will have access to up to 6 live committee webcasts a day.  View the upcoming webcast schedule now at www.chicagobar.org (click on Webcasts). Please Note: Only live webcasts of committee meetings qualify for IL MCLE and remember to login prior to the meeting start time to receive credit.

Invite your colleagues to attend a February committee meeting and they will earn free Illinois MCLE credit (if applicable, free credit limited to two meetings) and you can earn a chance to win a id=mce_marker00 Lettuce Entertain You Gift Card! 

WINTER IS UPON US!

Okay, so a 4-6 inch snow in January should not be something newsworthy, but with the first true snowfall occurring in this month, many of us were probably caught unprepared.

Last week, this blog reminded people to double-check their insurance coverage and to use the New Year as a time to do a "spring cleaning" as it were of our unfinished projects (like checking insurance policies!).

In the hope that some of you have actually done this, it is now time to move on to the winter driving, walking, and maneuvering season.  I'm thankful to have gotten in one last bicycle ride this week just ahead of the snow.  While I do see others out there in snowy, cold, and downright dangerous weather, I think my daredevil days are past, so I'm probably indoors for at least a little while.

Unfortunately, most of us probably have to either drive, walk, or otherwise commute, ambulate, and get around in these conditions.  We live in the Midwest and we know that winter comes with some frustrations and some dangers.

Try to plan ahead and be prepared so you can minimize these dangers to you and your family.

SAFE DRIVING TIPS:

• Drive defensively.  It takes longer to stop, is harder to see (due to the blowing snow and/or the sun's reflection off of the snow), and driving is less predictable when there is snow, ice, or slush on the ground.  It can be even more perilous when salt is placed onto the road, only to let single digit temps re-freeze the melted snow.  Add to that another layer of flurries on top and you have unseen ice!  When you drive in snow and ice, drive smarter, safer, slower, and more gradually.  It simply takes longer to get places.
• Make sure you can see.  Clean your windows (not just a hole in the windshield!), mirrors, back window, and side windows.  Make sure your windshield fluid is topped off and carry extra in the trunk.
• Have a snow brush and scraper with you.
• Keep flares in the trunk along with salt and cold weather gear for that "just in case" emergency.
• Have your cell phone with you and charged up so that you can contact help if you are stranded.
• Keep your insurance card with you just in case you are involved in a collision.

GENERAL WINTER SAFETY TIPS:

• If you live in the City of Chicago, you are required to clear snow and ice from any public walkways that abut the property of your home or business.  Keep in mind, this is against the general rule that says you do not have such a duty.
• The best thing to do is to clear ice and snow the best way you can for overall safety.  If you do a mediocre or inconsistent job of it, you are likely going to have difficulty defending any lawsuits or claims from people claiming they were injured falling on your property.  If you clear, do a good job.
• Also, keep in mind that people who fall on UNnatural accumulations of ice and snow may be able to pursue a claim against the owner or manager of a  property  but generally are precluded from pursuing for a NATURAL accumulation.  Simply, if you plow snow to a higher corner of a parking lot that slopes downward and know it will melt from there into a lower area causing a build up of ice, you could be "on the hook."  On the other hand, if you are careful to plow snow to a lower area, you will likely be deemed to have behaved reasonably.  If you plow or shovel snow but leave a layer of ice on the walkway or steps, you likely have not behaved reasonably under the law.  There are endless and confusing variations and interpretations of case law so the lesson to take away is if you live in the City of Chicago, you should learn your duties by contacting your Alderman's office.  If you live in a municipality that also has ordinances requiring snow removal, you should learn what your duties are in this regard.  When in doubt, ask your elected representative!
• Be prepared by wearing warm clothing, weather-appropriate shoes (girls, the open toed shoes just don't work when it's below freezing and guys, those gym shoes really don't do much against 6 inches of snow), gloves, and something on your head.  Unless you are blessed with a great head of hair, a hat does wonders for keeping heat in.
• Walk carefully.  Even areas that are salted and plowed can be cursed by the thaw-freeze-melt-refreeze cycle.  Be wary of what is underfoot and walk defensively.
• Be especially careful in explaining to smaller children that snow piles make them harder to see.  Make sure they understand to be extremely careful crossing streets and are sure cars see them and are able to stop before venturing forth.

IF THE WORST HAPPENS:

• If you fall while walking, get into a car crash, or otherwise have an emergency occur, make sure you follow these basic and common sense steps:
  • Call 911
  • Report the incident to your insurance carrier and/or exchange insurance information with the other driver(s) involved
  • Take photos of any damage or injuries
  • Photograph the scene and any conditions or signage giving rise to the incident, such as wet floor signs (or lack thereof), ice formations, snow piled in dangerous areas, or the like
  • Seek medical attention immediately if you are hurt
  • Contact a lawyer

ENJOY THE WINTER!

Many of us probably have tired of the long Chicago winters but lack the ability to relocate to sunnier climates for a variety of reasons.  Other people enjoy the winters.

Whichever category you include yourself in, remember to go with the flow, make the best of it, and prepare for the worst.  With a bit of planning, preparation, and extra care, winter can be an enjoyable and beautiful experience (just repeat this next time you are stuck in a snow-induced traffic jam without cursing me, please!).

Please contact me if you have any questions.

I AM PROUD TO ANNOUNCE THAT FOUR VERY SHORT YET INFORMATIVE VIDEOS HAVE BEEN ADDED TO MY WEBSITE.  THEY PROVIDE YOU WITH STEP-BY-STEP INSTRUCTIONS MIRRORING MUCH OF THE ADVICE GIVEN HERE ON WHAT TO DO IF YOU ARE INVOLVED IN A MOTOR VEHICLE INCIDIENT, SUSTAIN A SLIP AND FALL-TYPE INJURY, OR ARE INJURED WHILE WORKING.  PLEASE VIEW THEM AND TELL ME WHAT YOU THINK!

One thing the New Year always brings is resolutions and new laws.

RESOLVE TO CHECK YOUR INSURANCE

While some of us resolve to get to the gym more when we can't button our pants or have problems finding our toes without sucking in our gut, one thing we should also resolve to do is to review our auto insurance coverage.  In my experience, a huge majority of people are either completely ignorant of what their insurance policy limits are, are grieveously underinsured, or both.

Next, check to verify that you have uninsured and underinsured motorist coverage.  Insurance companies must offer this to you unless you specifically decline it and it must, in Illinois, be equal to or more than the liability limits.  This insurance is key as it protects you if you are injured by an uninsured motorist and also if the motorist who causes damage to you has insurance that won't adequately compensate you.

You should also make sure you have medical payments coverage, which will pay your  medical bills in the event of an accident.  Often, a $5,000.00 limit is common.

In any event, the best thing to do is get the most insurance you can afford.  Too many people learn the hard way, either  because they are hit by someone with horribly inadequate insurance, or if they injure someone severely and they were not adequately insured.  After all, it's your house, your car, and your family you are protecting so why skimp?

RESOLVE TO FOLLOW  NEW LAWS

Most important to safety is the new law in Illinois requiring all people in a vehicle to wear safety belts.  Kind of obvious but a great idea that is long overdue.

Other new laws include one allowing vehicles outside of Cook and the collar counties to travel 65 miles per hour, rather than 55, and one that increases the penalty for having no proof of insurance on a vehicle substantially, especially for repeat offenders or if serious injury is involved.  A good summary is provided in the Chicago Tribune article.

WHAT IS OLD IS STILL NEW

News that parents who supervised an underage New Year's  party were charged criminally should not surprise anyone who followed the tragic story of a similar story that happened in Deerfield, which involved a death.  Much as it seems to make sense to be on hand to watch children have parties, the simple fact is the laws do not think this is a good thing.  While many would argue that it would be better for minors to consume alcohol at home with adults present, the case mentioned above seemingly disproved that notion.  Simply, if you are an adult you cannot let minors drink in your home or provide alcohol.  It will result in criminal penalties as well as potential social host liability civilly--money damages!

Last year it became illegal to be a "distracted driver" via texting.  This remains the law and, while it is still completely possible to be a distracted driver using a hands-free device, that remains legal.  But you cannot text and drive in Illinois and in many municipalities, including Chicago, you cannot operate a vehicle without a hands-free device.  I'm a cyclist and driver and have nearly been run off the road while on both bike and in car by distracted drivers.  Please follow the law and common sense for everyone's safety.

A very happy and healthy and safe 2012 to everyone.  Protect yourself, your family, and be smart and safe! 

So you're probably expecting the "end of the year in review" post or the "holiday thanks" card/blog post. 

But while our hopes for best holiday wishes are always extended, and while we could type endlessly about what you need to know about the law and how it affects you with regard to personal injury and workers' compensation, we decided it is a lot more important just to say thank you to everyone who made this past year possible and to also quietly remind everyone to be careful this holiday season.

The simple fact is that crashes occur, workplace injuries happen, and even the best doctors make errors.  We are more distracted than ever before, with information bombarding our already deficient attentions 24/7.  Sure, there are laws against texting, "distracted driving" and the like, but we are human, fallible, impulsive, rushed, and short of sleep and time.  In short, we mean well but often make mistakes.  As I drove on I-55 yesterday and watched the driver next to me texting for 2 minutes straight it definitely made me realize how true this is and how dangerous the roads have become.  Further, when I ride my bicycle and almost get run over regularly by drivers who don't seem to see me.  People are in their own little worlds more and more frequently!

Keep in mind all of this when you are driving to and from holiday gatherings (let's face it; no matter what type of holiday it  might be, it generally involves family, friends, and food, with alcohol thrown into the mix often).  Drive defensively, keep alert for people who aren't aware of their surroundings, from out of the area and unfamiliar with where they are going, and bad weather.  You know it has to snow soon so be ready for it and carry extra snow brushes, gloves, hats, ice scrapers, flares, salt, and sand in the car.  And, it goes without saying, don't drink and drive.

Always carry your automobile insurance card with you or in your car and also  keep your health insurance information handy too.

Make sure you've read all my prior blog posts about what to do if you are involved in an automobile collision or work-related accident. 

There are also helpful videos on my website that will explain step by step what to do and not to do if these events occur to you.

Be careful and try to avoid dangerous situations.  Be prepared just in case.

Now go enjoy the holiday season, friends, family, food, and football, basketball, or your sport of choice (hockey in my case, although the NHL does take a Christmas break unlike the NBA and NFL)!

A recent story highlighted how spurious some of the arguments used to "reform" workers' comp were.  In fact, the very powers that be got exactly what they wanted and now are complaining they need more!

A temporary staffing company is laying off nearly 500 workers.  Interestingly, the story goes on to mention that nearly all of these workers are being rehired by another temp company.  Connection anyone????

Well, let's review a second.  The main argument presented last year for why businesses needed a workers' comp system reform was to lower the cost of doing business in Illinois.  Okay, so we got a reform bill signed by Governor Quinn in late June that many business groups claimed would reduce workers' comp insurance premiums.

Great.

But then came a story indicating one major insurer was actually RAISING rates!

Now comes this.

Granted, temp companies have the poorest trained, least experienced, "worst" employees and they are solely responsible for those employees who get hurt on the job.  So if you're in the temp staffing biz, it's not a party and it's not going to be cheap or easy.  But, now that the "reform" law passed how is it that these same entities are now complaining that it's still too expensive to do business?  Could it be that the "problem" of workers' comp wasn't the problem addressed?  Perhaps this means we are in for more fighting and cajoling to get more concessions for businesses.

Either way, haven't Illinois workers given up enough already?

Look at it from all sides and it's a lot more complex than you realize at first glance.  No doubt, workers' comp insurance is expensive and there can be no question that the system was rife with things that needed "fixing."

But did the fixes that were passed act as anything more than window dressing or was this just the first of the slippery slope to more "reform" to "help" businesses while "hurting" workers?

I'll leave it to you, the reader, to decide.  I'm biting my tongue for now.

I had to share this article I saw in Medill Reports concerning the uneasy mix of bikes and cars on the roads.

As a driver and bicyclist, I can certainly empathize with both groups.  I've certainly been doored, knocked into potholes, run off the road, and overall treated as if I was invisible by cars.

On the other hand, I will be the first to say that some bikers are less than studious in their adherence to the safety laws and often take chances that they shouldn't, especially at intersections.

So, I guess the "lesson" here is we should be a bit more aware of each other.  Bikers have to remember that cars will usually "win" any "arguments" while drivers have to be constantly aware of bikes in their blind spots, near them, and be careful not to turn in front of them.

What I recommend for bikers is lights and reflectors as well as stopping at stop signs (unless you want to take a chance that a 3,000 pound vehicle with its driver on the phone, doing nails, eating etc. will avoid you.  I used to laugh at lights but now I love them.  I can see other bikers much easier when they have flashing helmet or backpack lights on and it DOES make it much easier for cars to see them.

Drivers need to remember that even if you HATE these "stupid bikers" who "run lights, cut in and out of traffic" and generally annoy you, you are still responsible for your car's actions.  If you see something and can avoid it, you must.  Doesn't mean you have to be happy about it or that it won't make you  late to your meeting, your date, or your yoga class.  It might even wear down your brakes.  But that is life in the big city.

WE DO ALL HAVE TO GET ALONG WHETHER WE LIKE IT OR NOT.

So I call upon my fellow bikers to be a bit more cognizant of their surroundings and ask my fellow drivers to do the same.

Hopefully, we can coexist since some of us belong to both groups!

I am super-excited that the Chicago Bar Association Committee of which I am co-Chair, is hosting three truly wonderful and unique judges for our annual Judge's Roundtable this Tuesday December 6th at 12:15 p.m. at the Chicago Bar Association.

These three are all interesting personalities with diverse backgrounds and experiences.  I have seen all three speak at various times and have appeared in front of two of them and think it is worthwhile for anyone to come listen to them.

All the pertinent information is below.  Hope to see everyone there!

There IS a webcast of this meeting too.

THE CHICAGO BAR ASSOCIATION

Committee Meeting Announcement

Earn FREE IL MCLE from Your Desktop with New Webcast Committee Meeting Option!

View a live webcast of a CBA or YLS committee meeting and earn Illinois MCLE credit - without leaving your office or home and at no extra cost. Members will have access to up to 6 live committee webcasts a day. View the upcoming webcast schedule now at www.chicagobar.org (click on Webcasts). Please Note: Only live webcasts of committee meetings qualify for IL MCLE and remember to login prior to the meeting start time to receive credit.

THE CHICAGO BAR ASSOCIATION

Committee Meeting Announcement

Earn FREE IL MCLE from Your Desktop with New Webcast Committee Meeting Option!

View a live webcast of a CBA or YLS committee meeting and earn Illinois MCLE credit - without leaving your office or home and at no extra cost. Members will have access to up to 6 live committee webcasts a day. View the upcoming webcast schedule now at www.chicagobar.org (click on Webcasts). Please Note: Only live webcasts of committee meetings qualify for IL MCLE and remember to login prior to the meeting start time to receive credit.