Beermann Swerdlove :: Firm Blog

When Is A Friend Not A Friend? When It’s A Facebook Friend

By: Ari B. Kirshner, Personal Injury Practice Group

Over the past year it seems as though the writers for ‘The Good Wife’ have been endowed with prophetic vision in scripting the show. Last week’s episode involved protagonist, Alicia Florrick, attempting to find evidence that would allow a sympathetic judge to declare a mistrial in a case that found her client guilty of murder. Each time she reappeared before the judge with more evidence - be it jury misconduct or failure to disclose personal information – the judge indicated that the proof they had was insufficient for him to declare the mistrial. Ultimately, in the final moments of the show [SPOILER ALERT], superstar investigator Kalinda Sharma discovered that the Judge had “friended” one of the jurors on Facebook. While the “friending” was done through the judge’s campaign page and, as he so honestly put it, every “friend” was a possible vote, he nonetheless declared a mistrial on the grounds of inappropriate conduct between himself and the juror, thus giving the defendant another shot at justice.

This same situation played itself out this week in a Will County courtroom with the opposite result. Kelly Klein, an in-home day care operator, was charged with battery of a child after a 7-month-old boy she was watching suffered a head injury. She argued the boy bumped his head while playing on a tile floor; she was convicted of aggravated battery in a bench trial before Judge Rozak. In an effort to have the conviction thrown out, Klein’s attorney argued that Rozak’s daughter and son were Facebook friends of the injured boy’s uncle and aunt. Because the uncle testified at trial, Klein’s attorney argued that the relationships were important since the uncle’s credibility was at issue.

These arguments were rejected by a separate Will County Judge (Schoenstedt) who held a hearing on the issue. Schoenstedt found that imposing a requirement on judges to check the hundreds of Facebook friends they, or their family members, may have is an impossible standard to impose. Furthermore, an affidavit presented by Judge Rozak stated that “Since my children are adults and living on their own, I no longer vet their ‘friends’ and do not utilize their electronic networking sites.” While Klein’s attorney argued this was an ‘ostrich-head in the sand’ position, reviewing judge Schoenstedt still found there was no appearance of impropriety. Interestingly, Judge Rozak’s children changed their settings and privatized their Facebook pages after the whole hoopla began.

While time will tell if Klein’s attorney will appeal this specific issue, what is clear is that data on Facebook, Twitter, LinkedIn and other social media sites is entering courtrooms full steam ahead. I recall not too long ago a friend posting a post-accident photo on Facebook with the caption “Whoops! Missed the stop sign there.” As a Plaintiff’s personal injury attorney, I regularly look up defendant’s Facebook pages and anything Google can find on them. I’ve also been told by my family-law colleagues that Facebook often contains a wealth of information that opposing attorneys, or adverse clients, wouldn’t want disclosed. (Rule of thumb- If you don’t want your ex’s attorney to find out, don’t put it on the internet.) I suggest you give your electronic profile a look-over and decide if your posts, thoughts and photographs really belong to the ‘public’ or should remain ‘private.’ Don’t forget, once it’s out there attorneys can find it if they really want to – and don’t say you weren’t warned.

What We Can Learn From "The 'Cain' Mutiny"

By:  Howard Emmerman, Partner

The disclosures that knocked former Republican candidate Herman Cain off the presidential primary ballot last week are woefully typical of the attitude that pervades the workplace more than 45 years after the enactment of the Civil Rights Act of 1964 (42 U.S.C.A. §§ 2000e et seq.).  The employer - most often male - occupies a position of such dominance over his employees – male and female – that he himself is often not cognizant of the offensive nature of his actions.  Like Cain, he may even go so far as to completely deny allegations made by female ex-employees whom he supervised, and to attack the integrity of the women who have accused him.  Indeed, it is entirely possible that Cain honestly believes these statements; if so, his attitude toward female subordinates is more insidious than it would be if he simply admitted that he took advantage of them.

Equally typical and tragic is the attitude of the victims themselves – the employees whose lives are often made miserable by the offensive actions of their supervisors.  Only when one of them speaks out do the rest follow.  Of course, their reasons for suffering in silence are understandable.  They fear retribution if they are still employed, and often their fears are justified. 

But while a job is a treasured asset in this economy, I submit that personal dignity is still the greater treasure.  The pure fact is, you will never have a comfortable employment relationship in an environment where you are being exploited.  So I suggest to anyone who is the victim of a hostile work environment motivated by gender, race, age or infirmity, to do the following:

1.         Tell the offender to stop.  Advise him or her that his actions are offensive and must cease immediately.

2.         Make a diary of every discriminatory action that you witness, whether or not directed toward you.  If you later have to assert a discrimination claim, your diary will serve you better than mere memory.

3.         If the offensive actions are repeated after you’ve told the offender to stop, contact your HR supervisor.

4.         Periodically inspect and copy your employment file and reviews.  It’s your right in Illinois, and it will guard against any manipulation of your file if the offender seeks retaliation against you.

5.         Call us.  You are not without rights.  We have obtained substantial settlements for victims of hostile-environment employment discrimination, and are experienced in litigating these claims if settlement cannot be achieved.

To Shovel or Not to Shovel?

By: Ari B. Kirshner, Associate, Personal Injury Practice Group

Snow. That white blanket that brings hope of school cancellations to children and nightmares of the same to parents. I submit that the greatest nightmare that accompanies snow is…well, what to do with it? We all know at least one person that refuses to shovel their sidewalk because “if someone falls down they’ll sue me!” So, I ask you, is this person a simply a rotten neighbor or is there some truth to what they’re saying?

Unsurprisingly, there is actually some truth to that argument. Here are some key points regarding snow removal that every homeowner needs to know this winter:

1)    The first is my favorite: A homeowner is not responsible to remove natural accumulations of ice and/or snow and is generally not liable if someone falls on his property due to a natural accumulation of ice and/or snow. Therefore, no matter how bad it gets outside you can take it easy sipping hot coco in front of a fireplace as long as the winter condition on your property remain “natural.” A perfect illustration of the this rule is if someone on your sidewalk slips on fresh snowfall; since the snow is in its naturally fallen state, you won’t be liable for their injuries.

2)    The second rule is the converse of the natural accumulation rule noted above- once the snow and/or ice is manipulated into an unnatural accumulation you can be liable for a person’s injuries. This is true even if the unnatural accumulation is due to the design and construction of the property. One classic example of this is the “leaky gutter” that drips water onto a front porch during the day which freezes into ice overnight. This scenario is both a lawsuit and serious injury waiting to happen. Another example is when a homeowner deposits snow at a point on a driveway or yard not realizing that it will melt across a driveway or walkway as the temperature warms. Courts have held that that the resulting ice slick is “unnatural” and can result in homeowner liability.

3)    If a homeowner decides to shovel/salt conditions on his property he may not do so in a negligent manner. While this requirement is somewhat ambiguous, it generally means that a person should shovel/salt as a reasonably safe homeowner would. In other words, don’t cut corners or do the job in a sloppy manner. If you’re going to shovel the stairs or sidewalk, shovel them entirely; don’t ignore the edges or leave slush on the sides. If you’re going to salt the sidewalk, make sure there is enough salt for the entire job and not just a narrow walking path. Making part of your property safe while ignoring the rest can lead to some undesirable consequences. 

4)    Finally, those of you that manage or own apartment buildings have one additional rule that applies to you; that you must provide a safe method of ingress and egress to the property. This rule applies to you because these kinds of buildings need to be accessed by many people and it’s only fair that they be given safe access to them. Interestingly, this rule does not require property managers or owners to remove snow or ice, but merely warn of their presence and the danger they pose. This can easily be done through lighting or signage. While an easy burden to meet, its one often overlooked by those who must execute it.

While there are many benefits to property ownership it certainly comes with its own can of worries. Following these tips and keeping the exterior of your home in a safe condition can help ensure that this winter remains a memorable one for all the right reasons.

Transfer on Death Instruments

By:  James Cerami, Associate

The Illinois Residential Real Property Transfer on Death Instrument Act (the “Act”) establishes a new and valuable estate planning tool for Illinois residents.  The Act allows owners of residential real estate to transfer property upon their deaths using a document called a transfer on death instrument (a “TODI”).  According to the Act, residential real estate includes property improved with one to four dwelling units, a condominium or townhome, or agricultural property of 40 acres or less with a single family home. 

The Act is important for individuals and families who want to transfer their homes when they pass to specific beneficiaries without using costly or complex estate planning strategies.   Prior to the Act, if one wanted to avoid the time-consuming and often expensive probate court process, the property either needed to be transferred to an Illinois land trust, a revocable living trust, or some other entity.  However, the amount of work and cost involved in creating and maintaining these devices makes them unattractive for many people.   

Effective January 1, 2012, Illinois residential real estate can be transferred upon death to one or more designated beneficiaries using a TODI.  A TODI is similar in form to a deed, but must be executed with all of the formalities of a will.  Specifically, a TODI must be executed voluntarily by an individual with sufficient capacity and must be attested in writing by two witnesses.  After the document is created, it must be filed with the recorder of the county in which the real estate is located.    

During the property owner’s life, the TODI does not affect his or her current interest in the property.  The owner or owners can sell, mortgage, lease or otherwise encumber or transfer the property.  Additionally, the fact that someone is a future beneficiary under a TODI does not give him or her a present interest in the property.  Furthermore, like a will, a TODI can be revoked during the property owner’s lifetime as long as the revocation complies with the Act. 

According to the Act, TODIs can only be prepared by Illinois licensed attorneys.  TODIs are simpler than some other estate planning tools but still must be prepared with due care and skill.  If you have any questions regarding TODIs or other estate planning or property transfer tools, please do not hesitate to contact our office.   

 

Private Jets & Exotic Vehicles: Beermann Swerdlove supports attorney Morgan Stogsdill and sponsors the Second Annual Aviators Night for Sight

Beermann Swerdlove supported their attorney, Morgan Stogsdill, as she co-chaired the Second Annual Aviator’s Night for Sight on October 15, 2011.  Beermann Swerdlove was eager to be a sponsor of the event for the second year in a row.  All proceeds made from the night went to benefit the Illinois Eyebank and the restoration of sight.  The event was another huge success as the charity was able to raise thousands of dollars.  Aviator’s Night for Sight was fortunate to have Honorary Committee members such as Jarrett Payton, Patrick McCaskey, Kevin Grace and Ryan Baker. 

Guests enjoyed a champagne reception prior to boarding motor coaches to the private hangar.   During the event, guests were able to experience private jets, helicopters, exotic vehicles, gourmet food and Grey Goose cocktails.  Aviator’s Night for Sight also offered plane rides during the evening.  Akira’s owner, Jon Cotay, directed a fashion installation with Factor Models showcasing the latest aviation fashion labels.  In addition to the entertainment, a private jet flight was raffled off to one lucky guest.  Beermann Swerdlove, in conjunction with media outlets such as Michigan Avenue Magazine, NBC, CS Magazine and candidcandace.com, is proud to support Morgan, her hard work and such a wonderful cause.

For a video of the event: http://vimeo.com/31225961



 

Beermann Swerdlove Helps Clarify Where's the Beef?

By: Tom Field, Partner

As a 9 year old boy watching the Wendy's commercial, I never imagined  that I would one day be responsible for negotiating the contract for the  rights to use the persona of the late Clara Peller as well as her  caricature for a t-shirt.  The late Clara Peller of Chicago's north side was made famous overnight from a Wendy's commercial where three grandmotherly types  are looking at another restaurant's large bun covering a small piece of  meat, prompting Peller's signature cry of "Where's the beef?"

Wendy's spokesman Denny Lynch attributes the commercial's success to the  4-foot-11-inch Peller, who "captured the mood of the country at the time,  which was 'tell it like it is, tell it to me straight.'"

At Beermann Swerdlove, we've been known to represent famous entertainers and athletes before, and now - the late Clara Peller? My job gets more interesting every day!

Deane Brown Serves on Committee for Chicago Foundation for Women's 26th Annual Luncheon

 
Beermann Swerdlove LLP Partner Deane B. Brown with actress America Ferrera and Andrea Kramer, Chair of the Board of the Chicago Foundation for Women (CFW) at CFW's 26th Annual Luncheon on October 3, 2011. 

Brown served on the Luncheon Host Committee for CFW, which raises money to fund and support organizations that help women and girls.  CFW improves the lives of women and girls through grants, advocacy, leadership development and public and grantee education.  Since 1985, CFW has given more than 2900 grants totaling nearly $19 million.  CFW's grant making improves the lives of women and girls by expanding economic security, ensuring freedom from violence, and enhancing access to health service and information.

When Saving 15% Or More On Your Car Insurance Just Isn’t Worth It

By: Ari B. Kirshner, Associate, Personal Injury Practice Group

Auto insurance is not a topic that has ever fascinated me. To tell you the truth, up until a couple years ago, it was also fairly low on the totem pole with respect to the amount I spent on it. Why should I settle for saving 15% if I can cut corners on my coverage limits and save 50%? After all, chances are that the other guy will have sufficient coverage. Right?

Wrong! As it turns out, under-insured and un-insured motorist coverage are two of the most important kinds of coverage for a person to have. The difference between the two is simple: Under-insured coverage is for cases where you get injured by another person, but they don’t have enough insurance to cover your injuries. Un-insured motorist coverage is for cases where the responsible (or, perhaps, irresponsible) party has no insurance at all. Both types of coverage allow you to sue your own insurance company for the monetary difference so you can cover your losses. The catch is that you need to have purchased enough under and un insured motorist coverage to begin with.  

In the event you’re still not convinced, allow me to show by example. Say you get into an accident and have $65,000.00 in medical bills and the other driver has a $50,000.00 insurance policy. Unless you have under-insured coverage over any beyond the $50,000.00 you’d be capped out at $50k. Take another example where the person that hits you is un-insured, and you only have minimum limits un-insured coverage. You know how much that is in Illinois? $20,000.00 - which will get you a trip to the ER, a few visits with your family doctor and a couple weeks of therapy, if you get the discounted price.

As we approach bad-weather driving season I urge you to make certain that you have sufficient automobile insurance coverage for your needs. Now that I’m married and have a child on the way, I will admit that the seemingly un-sexy expenditure of car insurance has taken on a whole new level of importance. Think of it as another way of saying “I love you.”

CIVIL UNIONS: Tying the knot & what to do if that knot unravels

By: Morgan L. Stogsdill, Associate

On June 1, 2011, Illinois granted same sex couples, as well as heterosexual  couples the right to enter into a Civil Union.  This was due to the Senate Bill 1716 which passed creating the Illinois Freedom Protection and Civil Union Act.  This law gives same sex couples the rights to state created rights and some of the obligations created with legal marriage.

The Civil Union Act (Hereinafter “The Act”) only grants some of the protections afforded to married couple.  Specifically, the Act grants same sex couples various rights, including decision making power for their partners that they did not have in the past. These rights include, but are not limited to the following:

• Medical decisions
• Hospital visitation rights
• Health Insurance coverage
• The right to dispose of a partners remains
• The ability to share a nursing room home
• Applies to some pension benefits
• Access to the Domestic Relations Courts and laws

Without this Act, in the past, same sex couples faced hurdles in situations such as the hospital.  For instance, if their partner was sick, the ability to be present in the hospital room and make the necessary decisions for their partner would be in jeopardy.  However, now the Act, grants them the right to participate in these crucial decisions.

Glitz, Glamour and the Boom on the Wedding Industry:  Some may wonder how a couple obtains a civil union and surprisingly, it is very similar to obtaining a marriage license and thereafter getting married.  Specifically, a couple must obtain a license from the City Clerk, solemnize the Civil Union by exchanging vows before a secular or religious official and thereafter, register the union.

Currently, many same sex couples are opting for Civil Unions at a high rate.  The wedding industry for Civil Unions has capitalized on this new law and many wedding professionals hope more States will pass a similar law.  A quick search on Google will reveal numerous wedding advertisers for same sex couples and more seem to be popping up daily.  The wedding industry in general plays on people’s emotions for their big day and this coupled with the fact that same sex couples are finally able to solemnize their relationships, leads to many couples opting for large extravagant weddings.  This is great news for wedding planners, venues and event companies, as their business has started to increase at a rapid rate.    

The Elephant in the room: Potential Boom for the practice of Domestic Relations?  Clearly, no one wants to discuss the elephant in the room.  Specifically what happens to a couple if they do not work out, especially after an extravagant wedding and/or ceremony with friends and family?  The unfortunate reality is, like heterosexual couples, these things happen.  The Illinois Marriage and Dissolution of Marriage Act expressly prohibits recognizing same sex marriages (750 ILCS 5/212) and in the past, same sex couples did not have access to the Domestic Relations Court if their partnership did not work out.  Today, that has changed.  The Act now allows same sex partners that are breaking up to have access to the Domestic Relations Court to settle various disputes.   Since the Act only went into effect approximately four (4) months since the drafting of this article, Divorce lawyers have not seen a substantial increase in business from Civil Unions to date.   Within the next few years, many divorce attorneys predict that their business will increase substantially due to the break downs of Civil Unions. 

So what does one do if they feel their Civil Union may be coming to an end? Call us.

Pedestrians v. Cars....Pedestrians Lose.

By:  Ari Kirshner, Associate Attorney In the past year we've represented three clients involved in automobile v. pedestrian crashes whose cases I'd like to share with you. The first was a woman who suffered a degloving injury to her leg after being clipped by a bus tire. *If you're not squeamish and not familiar with that kind of injury, Google it. The second was an employee who suffered a severe head injury after she was hit by a cab while returning to her office from a lunch break. The third was a patient returning to a parking garage after an appointment at Northwestern Memorial Hospital. Each of these people was hit inside a crosswalk. Two of them were hit by cabs. All have, or will, recover money for their injuries.  After a 5 year investigation by the Chicago Department of Transportation, what we've known all along about crosswalks has been confirmed- they're not as safe as we think they are.  Here are some of the highlights from the 98 page study released by CDOT:   80% of pedestrian accidents occur in crosswalks or within 125 feet of intersection midpoints. Taxi drivers were responsible for 28% of injuries in downtown Chicago, and just 2% outside the downtown corridor.    Thursdays had the most crashes, and 3:00 - 6:00 p.m. was the highest crash period on any given day. A Devon Avenue corridor stretching from Sacramento to Leavitt was ranked one of the most dangerous in the City. Between 2005 and 2009 there were nearly 17,400 crashes involving pedestrians.   The City is doing its fair share to protect pedestrians, including: installing countdown timers at intersections, giving pedestrians more time to cross intersections and modifying newly constructed roads to slow down traffic. Additionally, the Chicago Police Department is stepping up enforcement and ticketing of drivers under  a new Illinois law that requires cars to come to a full and complete stop if pedestrians are within a crosswalk, as opposed to the old law that required drivers to just yield.    While the law will hold liable drivers accountable, common sense needs to be exercised too. Pay extra attention when crossing intersections; look to see if drivers are distracted or texting before stepping out in a street. Don't cross an intersection immediately when the walk signal illuminates, wait a moment to ensure a car isn't trying to 'catch the yellow'. Finally, texting and walking can be just as dangerous as doing it while driving- don't do it while crossing a street.  The fact of the matter is that accidents happen- and to pedestrians in large numbers. While nobody ever wishes to get hit by a car or bus, you want to make certain that you have a team of qualified attorneys ready and willing to fight for you when the worst happens. The above mentioned cases represent a sliver of the work that the Personal Injury Practice Group of Beermann Swerdlove LLP does on behalf of its clients. I encourage you to contact me directly if you have any questions regarding pedestrian or general personal injury claims.