~
or of
Statements expressions opinion or comments appearing herein are thoseof
the editors or contributors. and not necessarilythoseof the associationor section.
From the editors severe sanctions when crucial evidence is lost" which
appeared in the October 1993 issue of Tort Trends.
Dear Readers, As always, we invite our readershipto submit written
This issueof Tort Trendscontainsthree articles written commentsor rebuttal articles on anything that you feel is
by members the Tort Law SectionCouncil of the Illinois
of If
appropriate. the materialsmeet with our editorial policy,
State Bar Association; a letter from Judge O'Connell they will be publishedfor all to share.Pleasesendwritten
regarding changesto Rules of the Circuit Court of Cook commentsto JosephR. Marconi, Suite 2200, 222 North
County and a letter from Joseph B. McDonnell of LaSalleStreet,Chicago,lllinois 60603.
Churchill, McDonnell & Hatch responding to JamesP.
Sincerely,
Ginzkey's article entitled "Changingrole of IMEs," which R.
Joseph Marconi, co-editor
appearedin the December 1993 Tort Trends; finally we
close with an article entitled "Indivisible injuries-aggra-
vation of prior injuries," written by William A. Allison of
Allison & Kelly.
Mr. Allison has submitted his work purportedly in
to
response one written by me in the December1993Tort the six-month CTA notice
Trends.However, my piece did not discussapportionment
~ at all. Furthermore, cannotagreewith the premisethat the
I requirement
burden of proof shifts to the defendantwhen the plaintiff By Charles R. Winkler, Winkler & Gorey, Ltd., North Riverside, IL
or
cannotprove which defendant act caused which injury. Once upon a time there were 10 people who sued the
The first article in this issueis entitled "It's time to say CTA. The "Murphys" consisting of Niziolek, Bonner,
good-byeto the six-monthCTA noticerequirements," writ- Patinkin, Sanders and Murphy and the "Malones" consist-
ten by CharlesR. Winkler. The secondarticle is entitled ing of Vidra, Grabowski, Weimer, Thomasand Malone.
"Legal malpracticeissuesfacing the tort law practitioner" The judge told the Murphys to go home. Your notice is
written by Mark L. Karno. The third article is entitled wrong, you filed it too late; now this is your fate. A jury
"Should our roadsbe safefor intoxicateddrivers?" written listened to the Malones and gave them some money.
by ScottD. Lane.Lastly, is the correspondence from Judge Funny? No. Sad,unfair and still the law.
O'Connell requestingthe opinion of the Illinois StateBar Sec. 41 of the Metropolitan Transit Authority Act (the
AssociationTort Law Sectionon his proposedchangesto "MT AA ") sets forth a one-year statute of limitations on
the Rules of the Circuit Court of Cook County. (The any personalinjury action againstthe CTA and mandates
Illinois State Bar Association Tort Law Section has the filing of a written notice within six monthsof the date
respondedin the affirmative to Judge O'Connell's pro- of the injury. The notice must be filed in the office of the
posedchanges.) secretaryof the CTA board and also in the offices of the
Also, we would like to apologizefor neglectingto give general counsel for the CTA. It must be signed by the
of
credit to Mr. Tom Pakenas the Law Offices of Richard injured party or the party's attorney. It must statethe name
F. Mallen, as co-author of "Lost and found: parties find of
and address the injured person,the date,time, and loca-
u
The Tort Law Section newsletter published and distributed by the Illinois State Bar Association
-
The Ma/onescomplied and a jury ruled in their favor. The
Bonner decision questions the continued need for the
notice requirement.There are probably 100 appellateand
supremecourt decisions wrestling with the question of
~ By Mark L. Karno, Chicago
what constitutesa proper written notice to the CTA. Our
reviewing courts should no longer be required to answer To state a causeof action for attorney malpractice, a
the question. The time has come to repeal the notice party must plead facts establishingan attorney-clientrela-
requirement the MT AA.
of tionship, the breachof a duty owed by virtue of that rela-
tionship, and loss or injury proximately caused by that
Appendix breach. Howard v. Druckemiller, 2381ll.App.3d 937, 611
The Malone group consists of the following cases N.E.2d 1, 183Ill.Dec. 148. The law distinguishes between
againstthe CTA reportedin the Cook County Jury Verdict errors of negligence and those of mistaken judgment.
Reporter: Barth v. Reagan, 139 1ll.2d 399, 564 N.E.2d 1196, 151
Ill.Dec. 534 (1990). Malpracticeliability may be imposed
Malone (D/A: 02/26/88) KK-IO-2 12/17/93 when the combinedwisdom of the bar is that a reasonably
competent att9rney would not have exercised his or her
Thomas (D/A: 12/18/85) HH-44-16 08/14/92 judgment in that manner. Mayol v. Summers, Watsonand
Kimpel, 223 Ill.App.3d 794, 585 N.E.2d 1176, 1184, 166
Weimer (D/A: 01/16/86) JJ-39-7 07/02/93 Ill.Dec. 154, 162 (4th Dist., 1992). In Collins v. Reynard,
1541ll.2d48,607 N.E.2d 1185,180Ill.Dec. 672 (1993)the
(D/A: 10/10/87) JJ-38- 06/25/93 supremecourt held that a complaint against a lawyer for
professionalmalpracticemay be couchedin either contract
(D/A: 02/12/87) ]]-17-3 01/29/93 or tort and that recoverymay be soughtin the alternative.
A lawyer is neverliable in a malpracticeactionfor punitive
The Murphy group consists of the following cases damages. Illinois Code of Civil Proceduresection 2-115.
againstthe CTA reportedin the Official Reporter: However, an attorney is liable under the Contribution
Among Joint Tortfeasors Act (740 ILCS 100/1 et seq.)
Murphy (D/A: 05/12/86) Fairer v. Ambrose & Cushing P.C., 154 1ll.2d 384, 609
191Ill. App. 3d 918,548 N.E. 2d 403, 139Ill. Dec. 18
N.E.2d 315, 182 Ill.Dec. 12 (1993). Damagesmust have
occurred and are measured as the loss suffered in the
Sanders (D/A: 11/24/87)
client's underlyinglegal action or on the basisof someevi-
220 Ill. App. 3d 505, 581 N.E. 2d 211,163 Ill. Dec. 260
~'-"-
dencethat the client's legal position was somehowcom-
Patinkin (D/A: 08/10/88)
promisedby the breachof the duty alleged. Suppressed v.
Suppressed,206 Ill.App.3d 918, 565 N.E.2d 101, 151
Dec. 630
214111.App. 3d 973. 574 N.E. 2d 743, 158111.
Ill.Dec. 830 (1st Dist., 5th Div., 1990). Settlementof the
Bonner (D/A: 11/04/90) underlying lawsuit does not insulate an attorney from a
249 Ill. App. 3d 210, 618 N.E. 2d 871, 188 Ill. Dec. 301 malpracticeclaim. McCarthy v. Pedersen& Houpt, et al.,
(1st
No. 1-92-3250 Dist., 5th Div., July 23,1993).
Niziolek (D/A: 04/12/90) This article will addressa number of issuesfacing the
251 Ill. App. 3d 537, 620 N.E. 2d 1097,189Ill. Dec. 780 tort law practitioner seeking to practice defensively and
avoid committing professionalmalpracticeby pointing out
someof the major pitfalls to avoid. This article is not all
The other casescited are:
but
encompassing only highlights the major problem areas
Fujimura v. CTA, (1977) 67 Ill. 2d 506, 368 N.E. 2d 105, facing the tort law practitioner and will familiarize the
10 Ill. Dec. 619 practitionerwith the major issuesand generalprinciples of
law in that problemarea. This is in the hopethat by being
Saragusav. City of Chicago, (1976) 63 Ill. 2d 288, 348 armedwith knowledgethat it will help to keep the attorney
N.E. 2d 176 out of the problemareas discussed.
1. Dismissalpursuant to SupremeCourt Rule lO3(b).
Pothier v. CTA, 238 Ill. App. 3d 702,606 N.E. 2d 531,179 In Gray v. Hallet, 170 Ill.App.3d 600, 525 N.E.2d 89, 121
Ill. Dec. 699 Ill.Dec. 283 (5th Dist., 1988) attorney Hillary Hallet was
successfullysuedby a former client and becameliable to
Camp v. CTA, 82 111.
App. 3d 1107.403 N.E. 2d 704, 38 pay the former client $450,000 in a legal malpractice
111.Dec. 473 claim, when the underlying case that Hillary Hallet was
handling for the client was dismissedin accordance with
cited are:
The two statutes Supreme Court Rule 103(6).
SupremeCourt Rule 103(b) provides for the dismissal
Sec. 41 of the Metropolitan Transit Authority Act, 70 of a complaint,with prejudice,wherethe plaintiff failed to
ILCS 3605/41 exercisereasonable diligence in serving a defendantafter
~ the expiration of the statute of limitations. The plaintiff
and Employees
Local Governmental Governmental Tort has the burdenof showingreasonable diligence in the ser-
Immunity Act, 745 ILCS 10/8-101 vice of processonce the issueis either raisedby the court
~
or defensecounsel has merely filed a motion to dismiss promptly served with summons. Thus, the plaintiff's
raising the Supreme Court Rule 103(b)issue. Alsobrooky. action againstthe employeedriver was barred,too, on the
Cote, 133 Ill.App.2d 261, 273 N.E.2d 270 (1st Dist., 4th groundsof collateral estoppel. The reverseholds true as
Div., 1971). Segal v. Sacco, 136 1ll.2d. 282,555 N.E.2d well, i.e., the dismissal of the agent in accordancewith
719, 144 Ill.Dec. 360 (1990), setsforth the factors a court Rule 103(b) bars an action againstthe employer/principal. .J
considers reviewing a Rule 103(b)motion. They are:
in Ziembav. Anania, 23llll.App.3d 99, 596 N.E.2d 157, 172
(1) the lengthof time in obtainingservice; Ill.Dec. 878 (1st Dist., 5th Div., 1992).
(2) the activities of the plaintiff; 2. Motions that disposeof a casebeing heard before a
(3) the plaintiff's knowledgeof the defendant'swhere- motion to voluntarily dismissa case. Prior to the caseof
abouts; Gibellina v. Handley, 127 1ll.2d 122, 535 N.E.2d 858, 129
(4) the easewith which the defendantcould have been Ill.Dec. 93 (1989),it was a practiceamongplaintiffs' attor-
found; neys that when confrontedwith a motion to dismiss their
(5) specialcircumstances which would affect plaintiff's client's complaint for failure to comply with discovery in
efforts; accordance with Supreme Court Rule 219(c), a Rule 103(b)
(6) the defendant'sknowledge of the pendencyof the motion, or when confronted with a motion for summary
lawsuit; and judgmentafter it had beendetermined that the plaintiff was
(7) actualserviceover the defendant. barred from naming an expert witness in a professional
Reviewing courts interpreting Rule 103(b) generally malpracticeaction as a sanctionpursuantto Rule219(c) or
have affirmed a dismissalpursuantto the rule when only a can
Rule 220, (which in someinstances be fatal to the case,
matter of months have gone by with no activity having See,Barth v. Reagan, 139 lll.2d 399, 564 N.E.2d 1196,
takenplacein regardto servingsummons the defendant.
on 151 Ill.Dec. 534 (1990) and casecited therein), the plain-
(See, e.g., Paglis v. Black, 178 Ill.App.3d 1062,534 tiff's attorney would then take a voluntary dismissalpur-
N.E.2d 206, 128 Ill.Dec. 186 (3rd Dist., 1989) where the suantto 735 ILCS 5/2-l009(a). The attorney would then
appellate court held that an unexplained delay of five promptly refile the action after curing the problem. In the
monthsin obtainingserviceupon the defendants, wherethe Gibellina case,the supremecourt held that effective as of
plaintiffs conceded that they knew where defendants' the date of that opinion, (February22, 1989) a trial court
offices were located, warranted dismissal of the action may hear and decide a dispositivemotion which has been
based upon plaintiffs' lack of reasonablediligence; and filed prior to a section2-1009motion when that motion, if
Cannon v. Dini, 226 Ill.App.3d 82, 589 N.E.2d 653, 168 favorably ruled upon by the court, could result in a [mal
Ill.Dec. 253 (1st Dist., 2d Div., 1992) seven months. dispositionof the case.
Compare,Segal v. Sacco, 136 1ll.2d 282, 555 N.E.2d 719, Later cases held that if a defendant's attorney.
144 Ill.Dec. 360 (1990), where the supremecourt found announcedto the plaintiff's counsel their intent to file a
that 19 weekswas too shorta time to allow the dismissalto motion for summary judgment,that the motion was"before
be with prejudice.) the court" and the trial court would have discretion as to
In the past, a plaintiff's attorney,when confrontedwith which motion it would hear first. Fumarolo v. Chicago
a Rule 103(b) motion, would file a motion to voluntarily Board of Education, 142 lll.2d 54, 566 N.E.2d 1283, 153
dismiss the complaint pursuant to 735 ILCS 5/2-1009. Ill.Dec. 177(1990). Also, noncompliance with evenone of
That code section provides for the voluntary dismissal of the three requirementsof 735 ILCS 5/2-1009 will cause
lawsuits and also grants a plaintiff one year to refile their plaintiffs to lose their right to voluntarily dismiss. Vaughn
action. Then the attorney would promptly re-serve the v. NorthwesternMemorial Hospital, 210 Ill.App.3d 253,
defendantwith a summonsin the refiled action. However, 569 N.E.2d 77, 155 Ill.Dec. 77 (1st Dist., 2d Div., 1991),
since the case of O'Connell v. St. Francis Hospital, 112 appealdenied 139 lll.2d 605, 575 N.E.2d 924, 159 Ill.Dec.
1ll.2d 273, 492 N.E.2d 1322,97 Ill.Dec.449 (1986) the rule 117 (1991). One of these requirementsinclude the pay-
now is that: "In ruling on the pendingRule 103(b) motion, ment of coststo the defendant. The Gibellina v. Handley
the trial court may considerthe circumstances surrounding line of caseshas recentlybeencodified by amendments to
plaintiff's serviceof processin his original as well as his 735 ILCS 5/2-1009.
refiled complaint." Accordingly, a plaintiff's attorneycan The malpracticeissuecan also arise in situationswhere
no longer rely upon what used to be a safe harbor from an attorney has: failed to disclose the full extent of an
Rule 103(b)motions. (Cf., Martinez v. Erickson, 1271ll.2d expert witness' testimony, Stennis v. Rekkas, 233 Ill.
112,535 N.E.2d 853, 129Ill.Dec. 88 (1989),holding that a App.3d 813, 599 N.E.2d 159, 175Ill.Dec. 45 (1st Dist., 4th
trial court must examine the totality of circumstanceand Div., 1992); and where the attorney fails to seasonably
not ignore obvious diligence on the part of plaintiff after comply with outstanding discovery in sufficient time to
refiling.) comply with a court order. Vahn v. Northwestern
Another Rule 103(b)problem areaarisesout of the case Memorial Hospital, 210 Ill.App.3d 253, 569 N.E.2d 77,
of Williams v. Bolsten, 184 Ill.App.3d 832, 540 N.E.2d 155Ill.Dec. 77 (1st Dist., 2d Div., 1991)appealdenied 139
966, 133 Ill.Dec. 100 (1st Dist., 5th Div., 1989). The lll.2d 605, 575 N.E.2d 924, 159 Ill.Dec. 117 (1991). The
appellatecourt affirmed the trial court's holding that the latter is especially true in those counties or before those
dismissalof a lawsuit againstthe employer,who was sued judges who continueRule 2l9(c) motions for compliance
only as the principal of the tortfeasoremployee,for lack of dates.
reasonablediligence in obtaining the service of process In a similar vein, defenseattorneys' failure to comply
over the employer,was an adjudicationon the merits as to with discovery through their own fault may cause their
the co-defendantemployee,as agent, in accordancewith in
clients to be defaultedor face other sanctions accordance
Supreme Court Rule 273. There, the employee was with Supreme Court Rule 2l9(c), too, resulting in malprac-
4
County, Illinois Case No. 86 L 26208. The practitioner
should memorialize conversationswith any prospective
client by letter sent via certified mail when there is no
that
intent to represent person.The attorneymust also have
written fee agreements with all clients which spell out the
natureandextentof the representation.
4. Failure to follow the Chicago Daily Law Bulletin.
In Cook County there are somecasesthat are listed in the
ChicagoDaily Law Bulletin whereinno other notice of the
case'spendencywill be given. If the attorneyfails to fol-
low the Law Bulletin, it is possible that the client's case
will becomedismissedfor want of prosecution or that a
default order will be entered. If the attorneyneverreceives
notice of the adverse court order, the lawyer will face
potentialmalpracticeexposure.
5. SupremeCourt Rules governing mandatoryarbitra-
tion cases. In thosecountieswhereinsmallercivil claims
are subject to mandatory arbitration pursuant to Illinois
Code of Civil Procedure sections 2-1001A to 2-1009A,
SupremeCourt Rules 90 through 95 provide a whole new
setof pitfalls for the tort law practitioner. I refer the reader
to Supreme Court Rules 90(g) and 91(b) which were
amended,effective June I, 1993, to give greater teeth to
sanctionsimposedupon a party not taking the arbitration
processseriously. Now an attorneyfailing to participatein
an arbitration hearingin good faith facesthe possibility of
being debarredfrom rejecting the award or other sanctions
aspermittedby Supreme Court Rule 219(c).
6. Failure to advise a client about alternative dispute
resolution. One issuethat has not yet ripenedinto a mal-
practicecaseagainstan attorneybut could be a future issue
for the professionevolvesaroundthe growth of alternative
disputeresolution. Much to the chagrinof the battle-hard-
enedtrial lawyer, ADR is here to stay. Under the current
stateof the law, an attorneygenerallycontrolsthe meansof
achieving a result for a client and the client controls the
end result by accepting or rejecting settlement offers as
by
communicated the attorney.
Robert F. Cochran, Jr., in an article captioned "Legal
and
Representation the Next StepsToward Client Control:
Attorney Malpractice for the Failure to Allow The Client
To Control Negotiation and Pursue Alternatives to
Litigation," 47 Washington and Lee Law Review 819
(1990), suggests that an attorneycould be found liable for
malpracticeto a client by not allowing a client to choose
the meansof resolving a disputeby reasonof an informed
consenttheory which he analogizesto the medical mal-
practice informed consentcases. Whether any court will
adoptthis theory is yet to be seen. However,this doeswar-
rant the attentionof the practitioner.
7. Defendant being sanctioned for defense counsel
engaging in ex parte communications with plaintiff's
treating medical providers. In Petrillo v. Syntex
Laboratories, Inc., 148 Ill.App.3d 581, 499 N.E.2d 952,
102 Ill.Dec. 172 (1st Dist., 4th Div., 1986) appealdenied
113 Ill.2d 584, 505 N.E.2d 361, 106 Ill.Dec. 55 (1987),
cert. denied, 483 U.S. 1007, 107 S.Ct. 3232,97 L.Ed.2d
738 (1987),the court held that:
Because public policy strongly favors both the confi-
dential and fiduciary nature of the physician-patient
relationship, it is thus axiomatic that conduct which
threatensthe sanctity of the relationship runs afoul of
public policy. That being so, we believe, ..., that ex
5
parte conferences betweendefensecounseland a plain~ Association committee meetingsand at a public hearing.
tiff's treating physician jeopardize the sanctity of the This proposedrule would relax the absoluteprohibition of
physician-patient relationshipand,therefore,areprohib- defensecounsel engaging in an ex parte communication
ited asagainstpublic policy. Petrillo, at 177. with a treating physician or health care provider. As this
Subsequent caseshave extendedthe Petrillo principle issueevolves,the practitionermust keepup.
to: prohibiting ex parte communications betweena defen- 8. Failure to plead violations of the Structural Work
dant hospital and its own staff physician who treatedthe Act or other strict liability and burden of proof shifting
plaintiff, Ritter v. Rush-Presbyterian-St. Luke's Medical causes of action. There are some instances wherein a
Center, 177 IlI.App.3d 313, 532 N.E.2d 327, 126 Ill.Dec. plaintiff's attorney will file a complaint and go to trial
642 (1st Dist., 3rd Div., 1988);a physician who consulted againsta defendant claiming only that "negligence"caused
plaintiff's treating physician, Mondelli v. Checker Taxi the injuries and damages by
sustained the client. However,
Co., 197 IlI.App.2d 258, 554 N.E.2d 266, 143 Ill.Dec. 331 fit of
somecases within the parameters the StructuralWork
(1st Dist., 5th Div., 1990);a nursewho assisted defen-
the Act wherein the burden of proof is much easier and the
dant physician in treating the plaintiff, Robersonby Isaac plaintiff can avoid comparativefault issuesarising in the
v. Liu, 198 App.3d 332, 555 N.E.2d 999, 144 Ill.Dec. 480 v.
case. Simmons Union Electric Company,104Ill.2d 444,
(5th Dist., 1990);ex partecommunication betweena doctor 473 N.E.2d 946(1984). This is especiallyimportantwhere
and his own attorney,prior to suit, whereafter suit is filed, the plaintiff is more than 50 percentat fault for his or her
the attorney represents anotherdoctor who is sued in the own injuries and is therebybarredfrom any recovery,on a
samecaseand who hasthe samemalpracticeinsurance car- negligencetheory, by reasonof 735 ILCS 5/2-1107.1and
rier, Bayleander v. Method, 230 Ill.App.3d 610, 594 5/2-1116. Other casesfit within the parametersof "res
N.E.2d 1317, 171 IlI.Dec. 797 (1st Dist., 5th Div., 1992); ipsa loquitur" which can shift the burden of proof to the
to written communicationswith the physician. Lewis v. defendant'sattorney; and strict liability in tort. Some of
Illinois Central Railroad Co., 234 Ill.App.3d 669, 600 on
thesecasesmight not be successful a negligencecount
N.E.2d 504, 175 Ill.Dec. 573 (5th Dist., 1992); and to ex on
but would be successful one of theseother theories. If
parte communications between the plaintiff's treating the plaintiff's attorney failed to pursue these alternative
physician and the attorneyfor defendant,the medical cor- theories,the attorneymust have a well reasoned explana-
poration,for whom the physicianwasemployedat the time tion for choosingnot to pleadthem.
of the alleged malpractice. Testin v. Dreyer Medical A somewhatrelated issue evolves from the different
Clinic, 238 Ill.App.3d 883, 605 N.E.2d 1070, 179 Ill.Dec. pleading requirementsin the state and federal courts. In
56, (2d Dist., 1992),petition for leave to appealallowed, the recentcaseof Johnsonv. MethodistMedical Center of
147IlI.2d 647,612 N.E.2d 524, 183Ill.Dec. 872 (1993). It Illinois, Docket No. 92-2937 (U.S. SeventhCircuit Court
does not extend to an intern who took plaintiff's history of Appeals, December 1, 1993) the plaintiff's attorneys
andtestified regardingthat recordedadmission. Tomasovic pleaded very specific allegations of medical malpractice
v. American Honda Motor Company,Inc., 171 IlI.App.3d utilizing a form of complaint one would normally file in
979,525 N.E.2d 1111, 121 Ill.Dec. 804 (1st Dist., 3d Div., statecourt. The allegationsof the complaintdid not match
1988) cert. den'd 122 Ill.2d 595 (1988). Compare, the allegationsof the plaintiff's expert witness' testimony
Almgren v. Rush-Presbyterian-St. Luke's Medical Center, of
as to the deviationfrom the standard care by the defen-
240 IlI.App.3d 585, 608 N.E.2d 92, 181 IlI.Dec. 19 (1st dant. The defenseattorneysfiled a motion for summary
Dist., 2d Div., 1992)petition for leave to appealallowed, judgment which was granted.The plaintiff's motion to file
149 Ill.2d 647, 612 N.E.2d 510, 183 IlI.Dec. 858 (1993), an amendedcomplaint was denied. The Seventh Circuit
wherethe trial court's order granting the defendant'sattor- Court of Appealsaffirmed. Thus, if the plaintiff's attorney
ney the right to conductan ex parteconference with a psy~ had merely filed a complaint settingforth a short and plain
chiatric residentwho treatedthe plaintiff at the defendant's statementof the claim showing the they were entitled to
hospitalwasreversed. relief (F.R.C.P.8(a», without specifying any acts of mal-
The attorney malpractice issue arises where the trial practice,the casewould still be pending. This is a trap for
court entersa sanctionthat effectively preventsthe defen- the unwarywhich mustbe avoided.
dant from assertingan otherwiseviable defenseor causing 9. Investigation. There are somecaseswhere an attor-
a client to expendsumsof moneythat the client would not ney fails to thoroughly conductan investigation,including
otherwise be forced to spend. This results from the fact the taking of discoveryfrom one's opponent. The attorney
that in the face of a Petrillo violation, the trial court can gets to trial and then is suddenlyambushedby the oppo-
either find the violating attorney in contempt of court or nent's attorneyoffering surprisetestimony,due to the lack
enterany sanctionpermissiblefor the violation of a discov- on
of preparation the part of the attorney. Examplesof this
ery rule in accordancewith SupremeCourt Rule 219(c). aboundand most readersundoubtedlyhave their own war
Robersonby Isaac v. Liu, 198 Ill.App.3d 332, 555 N.E.2d stories. Given the liberal scopeof discoveryin our state,
999, 144 IlI.Dec: 480 (5th Dist., 1990); even where the (See,Monier v. Chamberlain,31 Ill.2d 400,202 N.E.2d 15
conduct was harmless or conducted in good faith. (1964», this is an area to which the tort law practitioner
Pourchot v. CommonwealthEdison Co., 224 IlI.App.3d must neverfall victim.
634,587 N.E.2d 589, 167IlI.Dec. 320 (3d Dist., 1992). 10. The plaintiffs attorney not knowing the value of
This entire issueis continuingto evolve. On November casesin that jurisdiction. Someplaintiffs' attorneysuse
17, 1993, the supremecourt heard oral argumentsin the the rule of thumb, whereby they multiply the total dollar
consolidated Almgren and Testin cases. Additionally, the value of the client's medical bills by three resulting in a
SupremeCourt Rules Committeehasproposeda new Rule dollar number that is neededto settle the client's bodily
221 which has been the subject of debate at many Bar injury claim. However, in a case where a young girl
1\
receivesseverepennanentscarringacrossher face from a N.E.2d 181, 56 Ill.Dec. 101 (2d Dist., 1981). Thus, strict
dogbite and incurs a medical bill of less than $500, three compliancewith SupremeCourt Rule 303(c) which gov-
times the medical bills, where liability is clear, is wholly erns the form and contentsof a notice of appealcan be a
inadequate unlessa collectibility issueexists. problem area. The practitioner should call upon appellate
11. Settling caseswithout client approval. Someattor- counselat the earliestpossibletime, evenbeforepreparing
neys have a practice of settling a case without notifying a post-trial motion, to avoid malpracticeexposure.
the client. It is -easyto imagine circumstances wherein a Another issueariseswhenan attorneywho practicespri-
client refuses to go through with a settlement and turns marily in statecourt handlesa matter in the federal court.
aroundand suesthe attorney.However,as a practical mat- There are different time limits for filing post-trial motions
ter, if one attorney attemptsto enforce a settlementwith and noticesof appealin the federal court as comparedto
another attorney when the client did not agree to it, the our statecourts. (Motions in federal court seekinga new
courts are reluctant to enforce the settlement agreement trial or to alter or amend a judgment shall be servednot
unlessthe settlementagreementwas enteredinto in open later than 10 days after entry of the judgment, in accor-
court, or the client gave the attorney expressauthority to dance with F.R.C.P. 59. In state court, 735 ILCS 5/2-
use their own judgment in the settlementof the case. The 1301(e)givesa party a full 30 days.)
courts generally recognizethat the client has the ultimate 13. Structured settlements. In structuredsettlements if
decision in the settlementof a case. See e.g., Estate of the plaintiff's attorney is not careful in negotiations,the
Fender v. Fender, 96 Ill.App.3d 1029,422 N.E.2d 107,52 to
client may be considered be in constructivereceiptof the
Ill.Dec. 426 (1st Dist., 2d Div., 1981). But, Cf., Parker v. cost of the structuredsettlementin which casethe plaintiff
Board of Trustees,74 Ill.App.2d 467, 220N.E.2d 258 (5th loses the tax benefits of the structured settlement. This
Dist., 1966), which holds that where the attorney has no could result in a malpracticeclaim againstthe attorneyfor
specific authority to enter into stipulationsfor a client, but the increased taxesthat the client would be forced to pay.
does so, the client's remedy does not lie in collateral Guidanceto the attorneyas to what constitutes"construc-
attack on the judgment but in an action againstthe attor- tive receipt" comes from Treasury Regulation 1.451-2(a)
ney. andexamples contained therein.
A related issue is where an attorney fails to notify the The plaintiff's attorneyin the processof settling a case,
client of a settlement demand or offer. See, Legal wherein the structuredsettlementissueis raised,and who
Malpracticein Settling Case,87 ALR 3d 168 at 183. In has not been exposedto the issues that arise with them
federal court, where the rules pennit a party to make an would be well advised to read: Paul J. Lesli, Brent B.
offer of judgment,pursuantto F.R.C.P.68, communicating Danninger & Robert W. Johnson,Structured Settlements
a settlement offer to a client is very important. This is true (1986), especially chapter 4 which is titled "Tax
since a plaintiff who obtains a judgment againsta defen- Considerations."
dantfor an amount,lessthan the offer of judgment,is sub- is
Another issuerelating to the structuredsettlement that
ject to paying the defendant'scostsincurredfrom the time insurance companies regularly assignthe annuity to anoth-
of the offer of judgment. er company. The plaintiff's attorneymust investigatethe
12~ Timely appeals/post-trialmotions. rating of the assignee companyby the variousrating agen-
Another area of concern to the tort law practitioner cies suchasMoody's StandardandPoors or ValueLine. If
exists when an attorney fails to write a letter to the client one of the contractingentitiesfor the annuitydoesnot have
advisingthe client when the time to appealexpires. Days the highestrating from one of the rating agencies, then the
after the time expires, the client decides to appeal the attorney must advise the client, in writing, and obtain a
order and learns that it cannot be appealedbecausethe consentor later face the possibility of facing the client in
time to appealexpired. The client then turns around and front of a jury to explain why. The attorney should also
suesthe lawyer for failing to file a notice of appeal. In all consider having the insurancecompany grant a security
scenarios wherean appealcould be filed, the tort law prac- interest in favor of the client on specifiedproperty of the
titioner should either file a notice of appealautomatically insurance companyto securethe annuity. This would give
be
which can subsequently withdrawn or, after speakingto the client a preferencein the event the insurance company
the client on the telephone,write a letter to the client via wereliquidated.
certified mail, advising the client as to when the appeal 14. Additional insurance. A plaintiff's personalinjury
deadline is and confirming the course of action agreed attorneymust obtain a copy of one's own client's insurance
upon. Another issuearisesfrom filing a prematurenotice policies in the initial interview. The failure to ascertainthe
of appeal,which is ineffective (SeeBlanchettev. Martell, existenceor lack thereof of additional insurancein a seri-
52 Ill.App.3d 1029, 368 N.E.2d 458, 10 Ill.Dec. 863 ous personalinjury claim is a blatant mistake for the tort
(1977)). law practitioner. Additionally, where an uninsuredor an
In a similar vein, it is a common practice for a trial underinsured motorist claim may exist, the client's insur-
lawyer to refer a client on to aIlother lawyer to represent ancecompanymust be notified as soon as possibleof the
the client in an appeal. It is important to call appellate possible existenceof an uninsured/underinsured motorist
counselinto the caseearly to give input as to the contents claim to avoid being forced to prosecute a declaratory
of the notice of appeal. This results from the rule that judgment action on the issueof the "timelinessof notice,"
when an appeal is taken, it is from a specifiedjudgment which could yield an unfavorable result.
only and a reviewing court doesnot acquirejurisdiction to Likewise, the failure of the plaintiff's attorneyto notify
review other judgments which have not been specified in the client's insurance carrier of an underinsuredmotorist's
the notice of appeal. E.M. Melahn ConstructionComapny insurancecompany's offer of policy limits, prior to the
v. Village of Carpenterville, 100 Ill.App.3d 544, 427 of
plaintiff's acceptance it, pursuantto 215 ILCS 5/143a-
..;
2(6) and giving the insurance company the opportunity to
match the offer and exercise its subrogation rights could
Should our roads be safe for
result in the plaintiff being denied underinsured motorist intoxicated drivers?
coverage and a malpractice action being filed against the By Scott D. Lane
attorney. See, Standard Mutual Insurance Company v. ..J)j)
Petreikis, 183 Ill.App.3d 272, 538 N.E.2d 1327, 131 A civil justice system often reflects the attitudes of the
Ill.Dec.77 I (4th Dist., 1989). There are many other subro- general public. Therefore, it should come as no surprise
gation and also lien issues which create malpractice con- that in Illinois drunk drivers are frowned upon by the legis-
cerns for the plaintiff tort law practitioner. They generally lature, the judges and, perhaps most importantly, the juries.
arise when the plaintiff's attorney having actual or con- The question is, however, should our civil justice sys-
structive knowledge of their existence disburses funds tem allow compensation to intoxicated drivers who are
without obtaining the necessary releases. A detailed dis- injured, not because of their intoxication but because of a
cussion of these issues is beyond the scope of the article. municipality's failure to maintain public roads? In other
15. Refe"ed files. There are circumstances where one words, should our roads be safe for all drivers, including
lawyer will refer a lawsuit to another on the eve of trial. If those drivers who may be intoxicated? This issue is
the referring lawyer has failed to properly prepare the case presently before the Appellate Court of Illinois, First
for trial, the receiving attorney should not accept the case District, Third Division in the case of Gillaird v. County of
and the responsibilities that go with it, unless the case can Cook, etal., No. 92-2635.
be voluntarily dismissed and refiled to cure any problems.
Sometimes the best case a lawyer takes on is the one not A. Gillaird v. County of Cook, etal.
taken on. Gillaird involves a two-car collision between the plain-
In a related vein, an attorney employed to bring a mal- tiff, Perry Gillaird, Jr., and defendant, Henry Toennes,
practice case against another attorney must take whatever which occurred on December 2, 1985, approximately one-
steps are necessary to attempt to salvage the first attorney's half mile east of Western A venue on Sauk Trail Road in
mistake or face a malpract~ce action being brought by the Cook County, Illinois. On December 3, 1985, Mr. Gillaird
client. Land v. Auler, 186 Ill.App.3d 382, 542 N.E.2d 509, died as a result of this collision. At autopsy, Mr. Gillaird
134 Ill.Dec. 330 (4th Dist., 1989). was found to have a blood alcohol level of 242 mg/dl. Mr.
16. Volume practitioner. The high volume practitioners Toennes was also severely injured. He went into a coma
must have a docketing system to keep track of their files. and was unable to provide deposition testimony. There
Many of the problems described above could be minimized were no eyewitnesses to this occurrence.
if the lawyer managed clients' matters more effectively so The estate of Perry Gillaird filed suit against Mr.
that files did not fall between the cracks and go for months Toennes and Cook County. The plaintiff subsequently set-
without being reviewed by an attorney. In some law firms, tled with Henry Toennes. The cause continued against
the solution to keeping better track of its files m~y also Cook County based on allegations of negligent mainte-
require the firm to hire more attorneys to work its files nance of Sauk Trail Road at the point of the collision.
properly. At the time of trial, Cook County presented a motion for
summary judgment primarily based on the contention that
Conclusion Cook County did not owe a duty of care to Mr. Gillaird
This article addressed some of the major problem areas since he was not an intended user of the county road. This
facing the tort law practitioner. Diligence, organization contention was based on the fact that Mr. Gillaird was
and knowing what to do and what not to do are the keys to legally intoxicated at the time he was operating his motor
a long and successful career in the tort law field, without vehicle. The trial court granted Cook County's motion on
getting sued for malpractice. Since tort law practitioners this basis.
face many hurdles to get around in order to avoid a mal-
B. A duty of care is owed to an intoxicated
practice claim being filed against them, they must expand
their arsenal of knowledge so that they have the weaponry driver who is using a public road in an
to avoid being hit. With laws and court rulings continually intended and permitted manner
changing the field, a lawyer practicing in this area must The duty of a unit of local government is governed by
constantly keep up with the changing environment. the Local Governmental and Governmental Employees
Lawyers must also maintain communication lines with Tort Immunity Act, ch. 85, par. 1-101, et seq. (1985),
clients and diligently pursue clients' matters with which Section 3-102(a) of the Act provides in relevant part:
they have been entrusted. If these general principles are Except as otherwise provided in the Article, a local
followed by the tort law practitioner, then that practitioner public entity has the duty to exercise ordinary care to
should minimize the chances of being named as a party to a maintain its property in a reasonably safe condition for
malpractice action. the use in the exercise of ordinary care of people whom
the entity intended and permitted to use the property in a
manner in which and at such times as it was reasonably
foreseeable that it would be used...(Emphasis added).
Illinois courts have focused on the use of the property
and the manner in which the property is being used at the
time of the occurrence to determine whether a duty is owed
to the injured person. The manner in which property is
8