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PRESIDENT’S PAGE-FEBRUARY 2007 Page 1BY STEVE BALOGH

I’ve made inquiry into whether there is a rulerequiring that the President’s Page be somehow of interestto the general membership of the Association. There isnot. I find this strange because the Association iscomprised entirely of individuals who deal in a universethat is based entirely on rules. You know, the “rule oflaw” thing. Yet, in my capacity as Association President,I have been granted unfettered and undefined discretion incomposing this monthly message.

If you have been reading my columns, you recallthat all prior columns have in some way related to eitherthe business of the Association or some topic of generalinterest to lawyers. I will be the first to admit that theboundaries of topicality have been a stretched to nearbreaking on one or two occasions. The problem is that,personally, I have grown weary of columns in The Lawyerin which we are lectured on courtroom decorum,condescendingly marshaled to do good, or reminded of ourserious, weighty, even ominous fiduciary duties aslawyers. Yet, in my efforts to keep it light, I havemanaged to at least keep things inoffensive (to most).

Following my first column, one of my partnerstold me I was being shallow and trite. I considered hiscritique to be synonymous with his volunteering to be myeditor. He and I have run out of ideas which are bothhumorous and inoffensive to all. Thus, I am left with twochoices. On the one hand, I could make this month’scolumn a lecture on courtroom decorum, marshal themembership to do good, or remind you all of yourfiduciary duties. On the other, I could be humorous and,consequently, offensive.

Down the first road, Chief Judge Kathryn Zenoffhas recently taken the rowing oar in getting a pilot projecton Civility and Professionalism started right here in theRiver City. This project is undertaken at the combinedurging of Chief Justice Thomas of the Illinois SupremeCourt and Cheryl Niro, who is a past president of the StateBar Association. The project is laudable in its own rightand looks to have a direct benefit to our membership. TheAssociation is becoming involved in the project with thehope that members who participate in its presentations willbe able to satisfy the new MCLE professionalismrequirements for Illinois lawyers.

Although not humorous, I will be offensive. I ama litigator. That, in and of itself, is offensive to many non-litigating attorneys. It is offensive, and there is a perceivedneed for a pilot project on civility, primarily due to theantics of a few very offensive litigators. Every litigatorwho has been practicing for more than 15 minutes has astory about the jerk who . . ..

For the uninitiated, there are lawyers who practicewhat we here in the hinterland call “Chicago style.” Thistype of individual is known in the scholarly journals as“the s.o.b. litigator.” This is the fellow who is

intentionally dilatory and evasive in responding to yourdiscovery requests to him (or her), but who files a motionfor sanctions because you are two days late in respondingto his discovery requests to you. Pigs will fly before thissanctimonious chap does you the courtesy of a phone callto ask if, maybe, you just inadvertently forgot. And whenyou are in court arguing the motion, our friend will nothesitate to accuse you of being everything evil, including,but not limited to, a pedophile.

Using a thought previously expressed in thiscolumn, if you are a litigator and you don’t have a warstory about an s.o.b. litigator, you are the s.o.b. litigator.There is simply no need to make life difficult. If you weretaught to send a notice of deposition unilaterally andwithout contacting the other side to inquire as to his or herconvenience and availability, you were incorrectly taught.If your approach is to make your first response to everydiscovery request a meritless objection, or to totallyobfuscate through production of volumes of unorganizedand irrelevant paper, your approach is wrong. It is neitherlegitimate nor good practice to always file a motion todismiss as the first responsive pleading to any newcomplaint.

(Continued)

PRESIDENT’S PAGE-FEBRUARY 2007 Page 2

Before closing, it is necessary to point out that notall s.o.b. litigators are litigators. Indeed, much of what I dois cleaning up messes made by transactional attorneys whojust could not do anything the easy way. I have a storyabout a transactional lawyer who wanted to terminate aWisconsin contract on behalf of a client, but who did wantto give the other party the requisite notice. So, this lawyerfiled a breach of contract suit in federal court in Rockfordbut did not serve summons. Instead, he sent a letter to theother party unilaterally terminating the contract fortrumped-up cause. The other party filed suit in federalcourt in Wisconsin and then got “homered” when the later-filed suit in Wisconsin was sent to Illinois. By the way,the plaintiff in the Illinois suit was a Tennessee corporationthat happened to have an officer living in Rockford. Whenruling on a motion for summary judgment in the Illinoissuit, the judge found that Illinois had little or no interest inthe suit, Wisconsin law governed the case, and plaintiffs’forum shopping tactics were questionable, at best.

Remember, we’re all in this together. I have foundthat when I work with the opposition my life is easier, myclients are better served and my work is more rewarding.I cannot think of a time when working cooperatively withan adversary has led to an unjust result. On the flip side,I could do another column recounting the times when ans.o.b. litigator’s tactics have worked badly for him, hisclient or both.

Steve Balogh woke up on the wrong side of the bed the day he wrote this President’sPage. Normally, he’s a pretty jovial guy who enjoys children, dining out, long walks on the beach,moonlit evenings and just talking.He is a partner at the newly renamed firm ofWilliamsMcCarthyLLP.

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WCBA REPORTING Page 3

THE WINNEBAGO COUNTY BARASSOCIATION ITS FIRST CENTURY,

1906-2005Written by Stephen A. Ellis and Robert J. Lindvall

is now available! Cost of the book is $25.00 and isavailable at the Bar Office.

CALENDARFEBRUARY-2007

1 Bar Foundation-Noon Bar Office5 Editorial Board-Noon Bar Office6 Real Estate Section Mini Seminar15 ADR Committee-Noon Bar Office19 Holiday-Bar Office Closed19&20 ISBA GAL Training NIU in Rockford21 Community Service-Noon Bar Office22 Estate Section CLE-Noon to 4:30 p.m.,

Forest Hills Country Club27 Board of Directors-Noon Bar Office

MARCH-20075 Editorial Board-Noon Bar Office9 Workers’ Comp Section CLE-Giovanni’s15 ADR Committee-Noon Bar Office28 General Membership Meeting-Barry Levenson

Giovanni’s Noon29 Family Law CLE-Forest Hills Country ClubPlease check the website, www.wcbarockford.org forchanges, updates and cancellations of meetings.

WCALSThe Winnebago County Association of Legal Secretarieswill present a mini-seminar on Thursday, February 8,2007, at noon at the Capri Restaurant. Speaker is RickPueschel of U.S. Secret Service on Counterfeiting. Lunchwill be pizza and soda. The cost is $7 for lunch andseminar (additional $1.75 for soda). Reservation deadlineis February 5, 2007. To make reservations, please callBonnie Shourek at 969-4233.

REAL ESTATE CONTRACT FORMSAll six Joint Approved Real Estate Contract

Forms have changed. There are eight riders which havechanges. The forms are sold in packages of 25 for $6.00for each form. The riders are $1.00 each. A complete newset of forms is $44.00. They are available to members ofthe WCBA for pick up at the Bar Office.

ANGEL TREETwenty-two members and friends of the Winnebago

County Bar Association participated in the Angel Treeproject in December, 2006. Forty-four children who havea parent incarcerated received holiday gifts due to thegenerosity of the following individuals:

Amanda Adams

Kathy Anderson

John Boreen

Tomiko Buchanan

Joseph Dailing

Idalis Edgren

Debra D. Fennell

Jeff Glass

Tom Greenwald

Gwyn Gulley

Laura Hargis

Carol Hartline

Hon. Patrick Heaslip

Hon. Janet Holmgren

J.F. Heckinger

Diane Reed

Hon. Craig Sahlstrom

Peter Savitski

Michael Shalbrack

Barbara Vella

Erin Walsh

Wendy Werren

This year, Debra Fennell chaired the program forthe WCBA Community Service Committee. A specialthank-you goes to Debra for all her hard work.

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SUPREME & APPELLATE COURT REVIEW Page 5

CIVILMD Electrical Contractors, Inc. v. FredAbrams and Carol Abrams, No. 2-06-0135(Second District – November 27, 2006)

The Second District of the Illinois Appellate Courtrecently reversed a lower court’s dismissal order andremanded the case for further proceedings after holdingthat the Home Repair and Remodeling Act (“Act”) (815ILCS 513/1 et seq.) does not apply to subcontractors.

The Abrams case arose when MD Electrical suedthe defendant homeowners in quantum meruit to recoverfor improvements that it made as a subcontractor on ahome improvement project at the defendants’ home. Thedefendants had originally signed a contract with ApexBuilders, Inc., the general contractor overseeing theproject. They moved to dismiss the case, arguing that MDElectrical violated the Act by not providing a contract forelectrical services it performed on the homeowners’ houseand by not providing them with a copy of the consumer’srights brochure or an acknowledgment form. MDElectrical responded that the Act applied to contractors butnot to subcontractors, and that the defendants should notretain the benefit of its work without paying for it. Thetrial court agreed with the defendants and dismissed thematter.

The Appellate Court began its analysis by lookingto the plain meaning of the Act’s relevant provisions.Section 30 of the Act states that “[i]t is unlawful for anyperson engaged in the business of home repairs andremodeling to remodel or make repairs or charge forremodeling or repair work before obtaining a signedcontract or work order over $1,000.” Section 10 of the Actdefines “person” as “any individual, partnership,corporation, business, trust, or other legal entity.”

The defendants argued that based on the Act’splain language, MD Electrical fell squarely within thescope of the Act’s provisions. MD Electrical countered byarguing that the Act’s particular language only applies tocontractors because they are the ones that initiate businessrelationships with the homeowners and are in privity withthe homeowners. Moreover, MD Electrical pointed to boththe Act’s specific reference to “contractors” and theirinitial communications and representations withhomeowners and to the Act’s omission of any reference to“subcontractors” as demonstrative of the legislature’sintent to regulate home repair and remodeling scams bycontractors and not subcontractors.

The Appellate Court found MD Electrical’sarguments compelling and concluded that the Act’sstatutory language “does not demonstrate unambiguouslythat the legislature intended that the Act apply tosubcontractors.” It went on to note that the statutorywarnings repeatedly refer to “the contractor” and thatbased on the Act’s legislative history, “the legislature’s

purpose in enacting the statute was to protect homeownersfrom the fraudulent practices of those contractors whodirectly solicit offers of home repair and improvementservices.” More importantly, the Appellate Court notedthat the defendants’ interpretation of the Act would requirethat a homeowner negotiate a separate contract with everysubcontractor on a home improvement project. To acceptthe defendants’ interpretation would lead to absurd resultsthat were clearly never intended by the legislature. Thus,the Appellate Court found that the trial court erred inapplying the Act to MD Electrical, reversed the trialcourt’s dismissal order, and remanded the case for furtherproceedings.

Baxter International, Inc. v. AmericanGuarantee & Liability Insurance Co., No. 1-05-3231 (First District – December 26, 2006)

The First District of the Illinois Appellate Courtrecently reversed a lower court’s decision to grantsummary judgment in favor of Baxter International, Inc.(“Baxter”), the insured, after holding that payments madeby American Guarantee & Liability Insurance Co.(“American”) to indemnify Baxter for damaged inventorycan be considered in calculating American’s liability forloss due to business interruption.

In 1998, Baxter’s Puerto Rican facilities weredamaged by Hurricane George. Baxter sought coveragefor its losses under a $1 billion commercial insurancepolicy issued by American, and submitted claims torecover losses it suffered from property damage andbusiness interruption. Based on damaged inventory,American paid Baxter the amount Baxter would havereceived had it been able to sell the inventory in theordinary course of business. Approximately $15 millionof the total $30.7 million American paid in damages toBaxter’s inventory accounted for lost profit.

In claiming business interruption losses, Baxterattributed such losses to damage of other property than itsinventory, and claimed that American could not considerpayments it made under the personal property provision ofthe policy to reduce its obligation to pay under thebusiness interruption provision. American countered byarguing that the profit component of the damagedinventory payment must be considered in determiningBaxter’s total actual loss during the claimed businessinterruption period. Both parties failed to reach anagreement after attempting to negotiate their differences.

In 2003, Baxter filed a declaratory judgment actionseeking a declaration that American’s liability for lossesdue to business interruption was independent of its liabilityfor damaged inventory. American counterclaimed,asserting that the policy covered only “actual loss” due tobusiness interruption, and that “actual

SUPREME & APPELLATE COURT REVIEW Page 6

loss” must be determined by considering profits Baxterrealized from American’s “purchase” of the damagedinventory. Both parties moved for summary judgment andthe trial court held that American’s payments for damagedinventory could not be considered in determining Baxter’sactual loss due to business interruption.

On appeal, the Appellate Court considered whetherAmerican’s liability for loss due to business interruptioncould be offset by payments made to indemnify Baxter fordamaged inventory. The Appellate Court began itsanalysis by looking to the language of the insurance policyto ascertain and give effect to the parties’ intentions.

Based on the policy’s business interruptionprovision, American claimed that its payment to Baxter fordamaged inventory constituted a “sale” of merchandise orother earnings, and that gross earnings must be consideredwhen determining the loss amount due to businessinterruption. Baxter, on the other hand, did not disputethat its own interpretation of the policy would entitle it togreater profit than it might have realized on the damagedinventory had the hurricane never occurred. Rather,Baxter argued that this alleged “windfall” was what theparties had bargained for when they entered into thecontract.

The Appellate Court first determined that thepolicy’s language was ambiguous as to whether “grossearnings” included all of Baxter’s earnings under theperiod of business interruption and those earnings Baxterrealized from American’s indemnification of damagedinventory. Next, it relied on the principle that partiescannot contract for terms contrary to public policy andnoted that according to public policy in Illinois, aninsurance contract should only indemnify an insured forthe loss it sustains and not provide the insured with awindfall profit. Finally, using the holding set forth in LyonMetal Products, L.L.C. v. Protection Mutual InsuranceCo., 321 Ill.App.3d 330, 343-44, 747 N.E.2d 495 (2ndDist. 2001) (in which the court determined that there is nodistinction between selling damaged inventory to acustomer in the ordinary course of business and receivingthe cash selling price for the same damaged inventoryunder the terms of an insurance policy), the AppellateCourt reversed the trial court’s decision to grant Baxter’smotion for summary judgment, and held that American’sliability for loss due to business interruption could beoffset by payments made to indemnify Baxter for damagedinventory.

Kyle Carlock is anassociate with Williams& McCarthy. A graduateof the University of IllinoisCollege of Law, he wasadmitted to the practiceof law in Illinois in 2005.

Marc C. Gravino is apartner in the law

firm of Williams &McCarthy. A graduateof the University ofWisconsin-Madison School of Law, he was admitted to the practiceof law in Illinois in 1988.

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CRIMINALPEOPLE v. IZQUIERDO - FLOREZ, 854 N.E. 2d 1156 (2nd Dist., 2006) Dismissal of Indictment -Affirmed. Justice McLaren delivered the opinion of amajority of the court. Justice Bowman dissents.SPEEDY TRIAL: ISSUE - - Did the People violate thisdefendant’s right to a speedy trial by charging him withfirst degree murder after he had originally been chargedwith second degree murder? ANSWER - - Yes.FACTS: The defendant was accused of strangling his aunt.In September of 2000, he was charged with second degreemurder and he demanded a speedy trial. Over the nextseveral months, several continuances were granted with theparties engaged in plea negotiations. In January of 2001,the People indicted the defendant for first-degree murder.The defendant then moved to dismiss the first-degreemurder charges and argued that his speedy trial rights hadbeen violated. The trial court agreed with the defendantand granted his motion. ARGUMENT: The People argued that the trial court erredwhen it granted the defendant’s motion. OPINION: The appellate court rejected all of thearguments of the People and ruled that under thecircumstances of this case, his speedy trial rights had, infact, been violated. Consequently, the dismissal of thedefendant’s first-degree murder indictment was affirmed.DISSENT: The dissent invoked the “law of the case”doctrine and held that since the elements of first andsecond- degree murder are identical, the defendant’s first-degree murder charge was not a “new and additionalcharge” separate and apart from his second-degree murdercharges. As such, the speedy trial rules should not havebeen invoked.

PEOPLE v. KUCAVIK, 854 N.E. 2d 913 (2nd Dist.,2006) DUI reversed and remanded. Justice Slater authoredmajority opinion. Justice Barry dissents.JURY INSTRUCTIONS (Necessity Defense): ISSUE - -Did the trial court err in refusing to instruct the juryconcerning the defense of necessity? ANSWER - - Yes.FACTS: The defendant was out drinking with herboyfriend. At the end of the evening both were intoxicated.The boyfriend started to drive the defendant home in hercar. She protested that they were both too drunk to drive.The boyfriend became abusive and ordered her to drive herown car. He threatened her with harm if she refused. Sincethe car was parked in the middle of the road, the defendantdrove the car two blocks and parked it. A police officerpulled up behind the defendant discovered that she wasintoxicated, and arrested her. During her DUI trial, thedefendant requested a jury instruction on the defense ofnecessity. The prosecutor objected and the trial courtrefused to give the offered instruction. From hersubsequent conviction, the defendant brought this appeal.ARGUMENT: The defendant argued that the trial court

erred when it refused to instruct her jury on the defense ofnecessity.OPINION: Under the circumstances of this case, theappellate court agreed with the defendant and reversed herDUI conviction.

PEOPLE v. ROBERSON, 856 N.E. 2d 1078 (4th

Dist., 2006) Suppression of Evidence - reversed andremanded. Justice Appleton wrote the court’s opinion. SEARCH AND SEIZURE: ISSUE - - Did the policeunlawfully run a warrants check on a passenger in a avehicle? ANSWER - - No.FACTS: A police officer stopped the defendant, AlfredRoberson, for a traffic violation. Roberson had apassenger in his car. The officer asked for and received theidentification of the passenger. A computer check revealedthat the passenger had an outstanding arrest warrant. Thepassenger was placed under arrest and the defendant’s carwas searched incident to that arrest. Contraband wasfound inside the car during this search. As a result of thisdiscovery, the defendant was also placed under arrest.Thereafter, the defendant was charged with illegallypossessing a controlled substance with the intent to deliver.Roberson moved to suppress the evidence the policediscovered during their search and argued that the policehad acted improperly when they ran their warrants check.The trial court granted the motion of the defendant andfrom that ruling this appeal was brought. ARGUMENT: The People argued that the trial court hadimproperly granted the defendant’s motion to suppress.OPINION: The appellate court agreed with the People andruled that the police did not violate any constitutional rightof the passenger when they ran a warrant check on himduring the traffic stop. (Please note that until the Illinois Supreme Court releasesa decision in the Harris case there will remain confusionamong the districts.

PEOPLE v. TATE, 853 N.E. 2d 1249 (2nd Dist.,2006) Denial of Motion to Suppress - reversed andremanded. Justice Hutchinson wrote the majority opinion.Justice Gilleran Johnson dissented. SEARCH and SEIZURE: ISSUE - - Did the policeunlawfully seize this defendant? ANSWER - Yes.FACTS: It was the evening of October 30, 2003. Thepolice were executing a search warrant on a house that wasbelieved to contain a bag of cannabis. Just as the policebegan their search, the defendant drove his car into thedriveway in front of that house. Noticing that the defendantwas wearing dark sunglasses and a bright purple wig, thepolice surrounded the defendant and ordered him to exithis car. When the defendant did not respond, the policepulled him from his car and placed him on the

SUPREME & APPELLATE COURT REVIEW Page 8

ground. A search of the person of the defendant revealeda small amount of cannabis and drug paraphernalia. Thedefendant’s motion to suppress evidence was granted andthis appeal followed.ARGUMENT: The People argued that trial court erredwhen it granted the defendant’s motion to suppress. OPINION: The appellate court disagreed with theargument of the People and affirmed the trial court’s ordersuppressing evidence.

Additional Published Opinions - 2nd

DistrictPEOPLE v. TURNER, 854 N.E. 2d 1139(2nd Dist.,2006); May the People appeal an order of the trial courtdenying the People’s motion for a medical examination ofthe defendant? No.

PEOPLE v. MATTIS, 854 N.E. 2d 1149 (2nd Dist.,2006); Did the trial court properly dismiss the chargespending against the defendant based upon the conduct ofthe Prosecutor before a grand jury? No.

PEOPLE v. MATTA, 853 N.E. 2d 110 (2nd Dist.,2006); Did the People prove the defendant acted in a cold,calculating and premeditated manner? Yes.

Lawrence Bauer is deputy director of the Office of theState’s Attorney AppellateProsecutor-Third District. He is a graduate of theValparaiso University School of Law. Mr. Bauer was admitted to the practice of law in Illinois in 1976.

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WHY ARE MOST DOWNSTATE LAWYERS LOCKED OUT OF REAL ESTATESALES–A DOWNSTATE LAWYER’S RESPONSE Page 10

BY STEVE ZIMMERMANThe cover page of the August, 2006 Illinois Bar

Journal featuring Helen W. Gunnarsson’s article entitled“Beyond ‘Deed and Green’” asks “Why are mostdownstate lawyers locked out of real estate sales?” As a“downstate” attorney from Rockford who concentrates hispractice in real estate transactions including residential realestate sales, I don’t question the premise of Ms.Gunnarsson’s article. Instead, I would suggest that thereare a number of things which can be done to reintroducelawyers to residential transactions in downstate Illinois ifthey are so inclined.

The Illinois Bar Journal article includes theinsights of a number of experienced downstate lawyersregarding this issue. For example, Section Councilmember Mary Faupel of Eureka observes that in downstateIllinois, real estate brokers and agents (who generally arethe first contact with the consumer) frequently discouragethe consumers’ use of an attorney in residentialtransactions despite the increasing complexity and

significant amounts at stake. Attorney David Dunn ofBloomington who gears his residential real estate servicesparticularly to “For Sale By Owner” consumers stated forthe article that “Over my 30 years of practice, many clientshave been advised by realtors and loan officers in mycounty that buyers do not need an attorney unless aproblem arises, fostering the notion that lenders can lookout for the buyer’s interests. Is it any coincidence thatlawyers are consistently present for both parties atresidential closings in the Chicago area, yet areinfrequently at the table in downstate Illinois closings?

Given the reality that downstate lawyers face acustom and practice that generally does not include themin residential transactions, what can be done to change thisculture for those lawyers who wish to be more involved inresidential transactions in downstate Illinois?

1. Commit to become involved. As with anychallenge, the first step is to commit to overcome theobstacles presented. I believe that those who do commit,will over time become known to other real estate

(Continued)

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WHY ARE MOST DOWNSTATE LAWYERS LOCKED OUT OF REAL ESTATESALES–A DOWNSTATE LAWYER’S RESPONSE Page 11

professionals including the “better” real estate agents,lenders, and title companies, as well as other attorneys, assomeone to send their referrals to.

2. Become knowledgeable regardingresidential real estate. This will require an expenditure oftime and effort in studying federal, state and local laws,case law developments, common law, contract forms, loandocuments and the like regarding residential real estate. Asignificant portion of real estate transactional work is alsogoverned by local customs and practices which the lawyerneeds to become familiar with.3. Volunteer to serve with your local Bar Associationon real estate matters. This might include working ondevelopment of local real estate contracts, relations withreal estate broker associations or other matters for thebenefit of lawyers and for consumers in real estatetransactions. If your local Bar Association is small anddoes not have an approved contract form for residentialreal estate, consider whether your area would be benefittedby an approved form which you could help to develop. Ihave found that attorneys who have worked on BarAssociation approved forms across the state have beenextremely helpful in sharing their forms and ideas withattorneys from other areas in the state.

4. Offer value and substance in your legalservices provided in residential transactions. In otherwords, don’t simply go along for the ride in a transaction.On occasion, I have witnessed an attorney allow a titleofficer or real estate agent try to explain closing documentsor otherwise advise the attorney’s client regardingtransaction issues while the attorney sits in silence.

5. Adopt internal systems and forms forresidential real estate. In order to provide your services ona cost-effective basis, you need to develop internal systemsand forms from which to work from to cover the widerange of issues and demands which can arise in thesetransactions. These will include client intake forms,calendar systems for contingency and performance dates,engagement letters, attorney and inspection approvalletters, conveyance documents and the like. For example,my office has developed different forms of engagementletters depending on whether I am representing a buyer orseller, brokered or FSBO transaction, existing residence ornew construction, condo, etc. These forms can then bereadily modified to meet the circumstances of theparticular deal.

(Continued)

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WHY ARE MOST DOWNSTATE LAWYERS ARE LOCKED OUT OF REALESTATE SALES-A DOWNSTATE LAWYER’S RESPONSE Page 12

6. Train your staff for residential real estate.Residential real estate is an unusually time-intensive anddetailed area of the law where files are often opened andclosed within 60 days or less. A highly trained staff iscritical to providing effective representation. Numerousfunctions such as gathering transaction information can behandled by trained staff under the lawyer’s supervision, solong as staff knows when to have the lawyer personallyinvolved with the matter.

7. Emphasize problem solving. In mostinstances, your clients have hired you to resolve issues soas to allow a transaction to be completed withoutsubjecting them to undue risks. The attorney will have theopportunity to demonstrate his/her knowledge andexperience in the process. This can be done without“grandstanding” or embarrassing other parties at the table.

8. Be prepared to handle the “For Sale ByOwner” transaction. Residential real estate often moves ata fast pace. In order to respond to your clients’ needs forthe preparation of a contract in a FSBO transaction, youneed to be available to your clients as well asknowledgeable regarding local customs and practices.Getting back to your prospective clients in a couple of daysin many cases will result in a loss of the client’s deal. Theconsumers’ needs in “ For Sale By Owner” transactionswill require even more time and involvement on your partand therefore, experienced real estate attorneys arejustified in charging more for their services in thesetransactions.

9. Be friendly. Often your favorablerelationships with other real estate professionals will servethe interests of your client. As Section Council memberAurora Abella-Austriaco points out in Helen Gunnarsson’sarticle, that “while our allegiance is to our client, we wantto and can facilitate the closing without compromising thatallegiance.”

10. Finally, when a real estate broker/agent,title company or lender appears to be approaching the lineof engaging in the unauthorized practice of law, call themout on it. In many cases, you can successfully steer themback to their appropriate roles. If not, notify the ISBAUnauthorized Practice Committee for review of thesituation.

Chicago area lawyers enjoy the benefit ofpracticing in a region where there is a presumption thatconsumers will be represented by lawyers in everyresidential transaction. Downstate lawyers, however, facethe custom and practice that generally would exclude themfrom these transactions. With a concerted effort, attorneysin downstate Illinois need not be resigned to being lockedout of residential real estate transactions.

Steve Zimmerman is a sole practitioner. A graduate ofUniversity of Georgia Law School, he was admitted to practice in Illinois in 1981.This article originally appeared in the ISBA Real Estate Section newsletter and is reprinted with permission.

New Members Approved at theJanuary 2007 Board Meeting.

Rachael Nicole Hernandez graduated from NIUCollege of Law in 2005. She is practicing lawwith the Winnebago County States Attorney’sOffice. She is sponsored by David Gill.

Dana M. Johnson graduated from NIU Collegeof Law in 2006. She is employed with HeylRoyster Voelker and Allen. She is sponsored byMark McClenathan.

Tracy L. Jones graduated from The JohnMarshall Law School in 2006. She is employedwith Jim Black Law offices. She is sponsored byJim Black.

Welcome!

Winnebago County Bar Association General Membership Meeting

March 28, 2007, NoonGiovanni’s Restaurant

Back, by overwhelming popular demand

Barry LevensonCurator of the Mt. Horeb, WI

Mustard Museum!If you missed his presentation several years ago, you

have another chance!

WCBA Members and Guests $25.00Reservation Deadline March 26, 2007

3/28/07 GMM $25.00Name(s)___________________________________________Please circle the names of those who prefer a vegetarian mealAmount Enclosed $___________________________________

Winnebago County Bar Association-321 W. State Street Suite300

Rockford, IL 61101

DISCOVERY OF ELECTRONIC MATERIAL UNDER THE FEDERALRULES OF CIVIL PROCEDURE Page 14

by John Rearden, Jr.Effective December 1, 2006, Rules 26 and 34 of

the Federal Rules of Civil Procedure have been amended.Among the changes are new rules concerning discovery ofelectronically stored material, such as e-mails, files on harddrives and in other places, etc.

Changes to the RulesRule 34 now provides that a party may request the

production of electronic materials. Rule 34 (a), Fed. R.Civ. P. It states that the request may specify that theelectronic materials be “translated, if necessary, by therespondent into reasonably usable form.” Rule 34 (b), Fed.R. Civ. P. The request may also “specify the form orforms in which electronically stored information is to beproduced.” Id.

As required before, the party receiving the requestmust respond. Id. The response is to include anyobjection to the “requested form or forms for producingelectronically stored information, stating the reasons forthe objection.” Id. A simple objection is not enough,however, because “[i]f objection is made to the requestedform or forms for producing electronically storedinformation – or if no form was specified in the request –the responding party must state the form or forms it intendsto use.” Id.

Rule 34 also provides several rules to resolvedisputes concerning electronic formats. First, if therequesting party has not specified a form for production,the responding party “must produce the information in aform or forms in which it is ordinarily maintained or in aform or forms that are reasonably usable.” Id. Second, “aparty need not produce the same electronically storedinformation in more than one form.”

Rule 26 also contains new rules concerningdiscovery of electronically stored information. “A partyneed not provide discovery of electronically storedinformation from sources that the party identifies as notreasonably accessible because of undue burden or cost.”Rule 26(b)(2)(B), Fed. R. Civ. P. The burden of showingthat such information is unduly burdensome or costly isplaced on the party responding to the request, however.“On motion to compel discovery or for a protective order,the party from whom discovery is sought must show thatthe information is not reasonably accessible because ofundue burden or cost.” Id.

Even if the producing party does demonstrateundue burden or cost, that party may still be required toproduce the materials. “ If that showing [of undue burdenor cost] is made, the court may nonetheless order discoveryfrom such sources if the requesting party shows goodcause, considering the limitations of Rule 26(b)(2)(C).”Id. The court is therefore apparently instructed to look atthe factors discussed in Rule 26(b)(2)(C) to decide

whether, even though production is unduly burdensomeand costly, there may be good cause to require itnevertheless. These most likely factors to consider areprobably whether “the burden or expense of the proposeddiscovery outweighs its likely benefit, taking into accountthe needs of the case, the amount in controversy, theparties’ resources, the importance of the issues at stake inthe litigation, and theimportance of the proposed discovery in resolving theissues.” Rule 26(b)(2)(C), Fed. R. Civ. P.

The Rules have also changed the planningconference procedure. Future discovery plans shouldinclude “the parties’ views and proposals concerning: ...any issues relating to disclosure or discovery ofelectronically stored information, including the form orforms in which it should be produced.” Rule 26(f)(3), Fed.R. Civ. P.

(Continued)

v i s i t u s o n l i n e a t w w w . f e r g u s o n f i n a n c i a l . c o m8 0 0 . 8 2 8 . 3 9 7 5

B E T H A N Y K L E I N E RC o m m e r c i a l I n s u r a n c e C S R

L E Z L I E R U S HC o m m e r c i a l I n s u r a n c e C S R

IN NEED OF BONDS?CALL US!

DISCOVERY OF ELECTRONICMATERIAL UNDER THE FEDERALRULES OF CIVIL PROCEDURE

AnalysisAre these changes earth-shattering? No. The

production of electronically stored materials is nothing new.The Rules do, however, at least set forth some sort ofprotocols so that discussion of the necessary issues can occurearly on in the process. A party seeking electronically storedmaterials may or may not identify a desired format. Theresponding party may accept the desired format, object andspecify its own format, or just specify its own format if noformat was originally specified. The responding party mayproduce the materials in the form in which the materials areordinarily maintained, or in a reasonably usable form.

Discovery disputes are often really about money.Who has to pay to put the materials into a form in which therequesting party can use them? While no rules will ever beable to make such issues go away, the new rules do appear tobe sensitive to the issues, and will provide some uniformityto decisions and openness to the factors for judges toconsider.

The “cause” exception is new, and is troublingespecially for those who usually produce more documentsthan they receive. It creates the possibility that a party maysucceed in showing undue burden or cost, and yet still berequired to produce the materials. Frankly, however, it mayjust allow a judge to be more open about the determinationof undue burden or cost. A judge who really felt thatmaterials should be produced could always have determinedthat the production was not unduly burdensome or costly.

John Rearden has a J.D. from Emory University School of Law.He is a partner in the law firm of Oliver, Close, Worden, Winkler & Greenwald. He was admitted to the practice of law in Illinois in 1985. John is a member of the WCBA Editorial Board.

TRAINING FOR ALL ATTORNEYSFOR CHILDREN

BY MIKE RARIDONThe recent enactment of Supreme Court Rule 906

now requires that attorneys who represent children inadoptions, divorce, parentage, probate, or the juvenile courtsin Illinois comply with continuing certification and educationrequirements. On February 19th and 20th, attorneys fromacross the Second Appellate district will have theopportunity to fulfill those requirements in a seminarsponsored by the Illinois State Bar Association.

Titled “Education for Attorneys in Child CustodyMatters,” the two-day seminar is being held at the Rockfordcampus of Northern Illinois University, 8500 East StateStreet. The course will feature a combination of previouslyrecorded video segments and live presentations on subjectsincluding the roles of attorneys as Child Representatives,GALs, and attorney for the child; children’s developmentalstages; report writing for the courts; privacy issues; ethicalconstraints; domestic violence and the family; and a case lawupdate. Completion of the course will also qualify Illinoisattorneys for 10 hours of MCLE credits.

This course has already been offered in Collinsvilleand Bloomington, and will be presented in Quincy onFebruary 9-10. Each Circuit must adopt a certification planwhich incorporates a similar education requirement for allattorneys who represent children in any custody matter.

Registration information is available on the ISBAwebsite, www.isba.org. Cost varies depending uponmembership in the sponsoring organization.

Michael Raridon is a partnerin the firm of Martenson, Blair & Raridon. A graduateof Washington University Collegeof Law, he was admitted to the practice of law in Illinois in 1981. He is a member of theEditorial Board.

Page 15

VIDAL HAS LEFT THE BUILDING... Page 16BY RANDY WILT

As most of you know by now, Judge RichardVidal, of Elvis impersonation fame from the Follies, hasretired. His former haunt, Courtroom 314 is now occupiedby his replacement, Judge Prochaska.

Judge Vidal became “Judge” Richard Vidal at theripe old age of 32. He was appointed as an AssociateCircuit Judge directly from his position as an AssistantState’s Attorney. Judge Vidal served as an AssociateJudge for 17 years and spent the last 9 years as a CircuitJudge, serving most recently as the Chief Judge of theCriminal Division.

When asked why he decided after 17 years to seekthe position of Circuit Judge he indicated it was because ofa desire for increased responsibility and the challenge ofmore difficult cases. Perhaps that should be a lesson to themany seeking a judicial appointment, never stop trying toimprove yourself.

Over the years Judge Vidal presided over manythousands of cases. One of the changes he noted in life asa judge involved the increase in caseload. Gone are thedays when a judge could complete his call and be gonefrom the office by 3:00 or 3:30 PM. Today’s judges facenot the 1400 felonies per year that were filed early in hiscareer. Now they face 6000 or more felony cases filedyearly. The job of being a judge involves more pressureand work than people realize.

When asked about his most memorable casesJudge Vidal laughed and talked of several of the funniercases over which he presided. Propriety aka Holly Nashmight object to some of the case descriptions but I willattempt to remain as politically correct as possible.

Judge Vidal remembers being torn in how to rulewhen an ex-husband being grilled by attorney Ben Healycalled Ben a “...senile SOB.” Healy, of course, objected.After taking the appropriate judicial pause he sustained theobjection in part and overruled it in part. You may decidefor yourselves what that means.

Another case Judge Vidal remembers was aneviction case involving a snow sculpture created by twoyoung women. Apparently, the sculpture did not sufferfrom the dreaded E.D. The neighbors objected and aneviction action alleging nuisance was instituted. Luckily,the weather turned warmer and the evidence began toshrink and finally disappeared.

As his retirement is in its early stages Judge Vidalhas not entirely mapped out his plans for the future. Hecertainly intends to visit his children who can be found asclose as Chicago and as far away as the Washington D.Cand Washington State areas. An avid hiker he intends tocontinue to hike trails and mountains both in this countryand elsewhere.

In the past he has canoed and rafted numerouslakes and rivers including the infamous river from themovie Deliverance. That river is apparently as remote and

rough as in the movie. Interestingly, he could recognizemany of the same locales from the movie including the sitewhich might still give actor Ned (Squeal Like a Pig) Beattynightmares.

Judge Vidal truly enjoyed his time on the bench.He enjoyed the many people with whom he worked andfound interesting the true cross-section of humanity thatcame before him.

To the other judges, the many attorneys, clerks,court reporters, bailiffs, and other people with whom hehad regular contact over the years he asked that I conveyhis thanks for your years of friendship and he wanted tosay: “I will miss you.”

Winnebago County Bar Association*SAVE THE DATES*

Upcoming Continuing Legal Education Seminars

February 22, 2007Estate Section

Forest Hills Country Club12:00 Noon to 4:30 p.m.**

March 9, 2007Workers’ Compensation Section

Giovanni’s12:00 Noon to 4:30 P.M.**

March 29, 2007Family Law Section

Forest Hills Country Club9:30 A.M. to 3:30 P.M.**

**Times are approximate and actual MCLE credit hours will be publicized as soon as the information isavailable.Topics, speakers, cost and reservation information will be announced as soon as possible.

The Winnebago County Bar Association is an approved provider of MCLE in Illinois.WCBA-321 W. State Street, Suite 300, Rockford, IL 61101 (815)964-4992

THE LEGAL FOLLIES-A LOOK BACK Page 18

THE LEGAL FOLLIES-A LOOK BACK Page 19

CLASSIFIED Page 20

Office Space to RentUnique space for 2 or 3 lawyers. Rent includes utilitiesand plenty of parking. Located at 2425 Charles Street.Contact Gordy Ring at 387-7831, Tom Nash at 397-7500or Tom Meyer at 636-9300.Office Space for RentSpace available at 728 North Court St. Parking andutilities included. Call Tom Laughlin or Ken Ritz at 968-1807. Only one office left!Office Space for RentGreat Location, across from Burpee Museum. 1800 squarefeet. Ideal for 2-4 lawyers or other professional business.Nice size offices, large conference room separate breakand copy room. On/off street parking. Contract Rich orLuci Butera (815)962-9996.Space AvailableFive lawyer office interested in someone to share spaceand expenses. Some case referrals possible. Not apartnership. Need more information? Contact: Keith S.Morse at 967-5000.Storage Garages AvailableStorage space for your vehicle, boat, camper or classiccar. Four garages available, each $50.00 per month. Close in. Call (815) 399-2860Office Space for RentOffice space for rent in One Court Place. Closest buildingto the Court House entrance. Two offices in a five officesuite with space for secretaries. Will share officeequipment and expenses. Please call Brian K. Larkin 815-964-4601.Office Space Morrissey Building200 to 1000 square feet of prime office space in well-maintained, historic building. Cable t.v. & hi-speedinternet available. Network with bankers, engineers,videographers, developers, the River District and evenlawyers, all in one building. Ask for Bill or Joe, 965-5505.Office SpaceUnique, class A office space in Loves Park. Approximate1725 Square feet includes 2 offices, large conferenceroom, secretarial and file area, large storage room, lobbyand kitchenette area with dishwasher and refrigerator.Phone system stays and network and broadband wiring isin place. Fully furnished. Large parking lot and easyaccess to Riverside Blvd and North Second Street. CallNerino at 815.636.1001 or visit www.njpetro.com.For RentProfessional Office Space for Rent, Downtown Rockford.Under New Management, 500-700 Sq. Ft., Please call 815-877-2500 and ask for Rhonda.

Office Space to RentSpace to rent for 1 to 6 lawyers, up to 3100 square feet;floor plan allows for configuration to suit what you needfor your “suite”. Additional 1200 square foot meetingarea also available for larger office use and/orsubdivision. Ample off-street parking, within walkingdistance to Courthouse. Contact Donald L. Shriver at963-4895.Office Space for RentSpace available at 838 N. Main Street. Parking andutilities included. Five offices; 1,100 square feet; $1,200per month. Call Peter DeBruyne at 964-3810. Position AvailableNicolosi & Associates, L.L.C., a general practice law firmin Rockford, Illinois is looking for a transactional lawyerwith approximately three years experience to join thefirm’s real estate and business transactions practice. Pleasesend your resume to greg@nicolosilaw.com or fax to 815-229-4964. Confidential inquires welcome.Associate Attorney Employment Opportunity:Downtown Rockford Law Firm seeks attorney with at least1-3 years litigation experience. Please mail or fax yourresume to FABIANO LAW OFFICES, Attn: ThomasFabiano, 321 W. State Street, Suite 1200, Rockford, IL61101. Fax (815)965-6782.Positions Available

The firm of Guyer & Enichen is seeking two attorneys.One position is for a litigation lawyer. The other positionhas a general practice emphasis, particularly in the areas ofreal estate, probate, and municipal law. All resumes will bekept in strict confidence. All skill levels in terms of yearsof practice will be considered. Salary will becommensurate with experience. Please contact either MikeScheurich, Jim Tuneberg, or Ed Maher directly

For Sale

Mercedes 1995 C280, 89K miles. Black, sunroof,excellent condition, looks almost new, $6500.00. ContactGreg or Misha Guth, 962-2121 greg@guthmediations.comor misha@guthmediations.com.

Office Space

Aging, left-leaning, laid-back N/S DWF attorney seeksN/S M or F attorney to share office condo. Some referralspossible. Ideal candidate will love books, animals and“Boston Legal”. Many negotiables. Contact NancyMindrup, One Court Place #101. 316-1101.

Prsrt StdU.S. Postage

PA I DRockford, ILPermit No 14