Illinois Lawyer Referrals and Legal Guidance

Archive for July, 2011

5 tips on punitive damage awards in Illinois.

Wednesday, July 20th, 2011

1. Why are punitive damages given?

The purpose of lawsuits is usually to make the plaintiff whole after a wrong has been done. Ordinary damages compensate you for your loss. Punitive damages, on the other hand, are used by the court to punish someone whose behavior is extremely bad. Not only will the defendant be sent a message about how bad the actions were, but others could possibly be deterred by the prospect of this punishment.

2. What behavior will trigger punitive damages?

The penalty of punitive damages is aimed at behavior that is beyond an ordinary bad act. There needs to be an elevated factor of being deliberate, calculated, willful, motivated by ill-will, fraudulent, and the like. If someone acts with an evil motive, or so disregards the rights and safety of others, punitive damages may be available.

3. What kinds of lawsuits allow punitive damages?

Generally, punitive damages are available in personal injury lawsuits. Though all injury cases involve some aspect of someone doing something wrong, in punitive damage cases the bad behavior is on the higher end of the scale. Some examples of situations where plaintiffs frequently try to claim they are entitled to punitive damages are: intentional acts like assault and battery and other violence against a person; invasion of privacy; defamation; product liability cases; extreme and deliberate acts of fraud; and violations of a relationship of trust and duty.

4. What kids of lawsuits do not allow punitive damages?

If a case involves a dispute over a contract, and there is no separate claim for a personal injury related to the contract action, then punitive damages will not be available. Also, cases for legal malpractice and medical malpractice do not allow for punitive damages, even though they are more like personal injury actions.

5. Can you get punitive damages if you don’t have other damage?

No; in Illinois, punitive damages do not stand alone as the only harm in a case. This is true even where someone has done something so outrageous that the behavior would likely be punished by awarding punitive damages. Even if we would like to admonish someone’s actions with punitive damages, there has to first be a case for recovering damages to compensate your harm, before the elevated punitive damage award can be given.

Tags: Aurora civil litigation attorney, Springfield civil lawyer
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Spouses buying houses: what are you each getting?

Tuesday, July 19th, 2011

When a husband and wife are buying a house together, after they find something to each of their liking, what do they actually get? When they sign their names at the closing, what has actually transferred to them? The answer depends on what type of deed they got, and how they chose to take that deed.

A deed is the instrument that actually transfers the ownership of the real estate from the prior owners to you. There are two major kinds of deeds. One is a quitclaim deed, which doesn’t provide any guarantees about what is being transferred. The seller merely transfers to the buyer any interest that he or she has in the property, without any promise or representation about what that interest is.

More commonly in a home sale is a general warranty deed. Here the seller gives the buyer a deed with guarantees. The deed makes the promise that the ownership in the property is valid, and that the seller has the right to sell the property.

When the seller transfers the ownership of the real estate, this is called transferring “title” to the property. The type of title you choose, also makes a difference as to what you each will own. The different kinds of title have benefits and restrictions.

You and your spouse can own the property as “tenants in common.” This means that you each have an ownership interest in part of the property. Your interests are each separate, and not dependent on what your spouse does with his or her interest. So even though one can’t sell the whole property without the other, one can transfer or tie up his or her own interest without the consent of the other.

You can also take your ownership in the real estate as “joint tenants.” If this kind of title is chosen, then each of you has an interest in the whole property. What that means is that each spouse is sharing in the ownership of the whole thing. Both of you take the title together, and when one of you passes away, the property interest automatically passes to the other. You don’t have to be husband and wife to own property as joint tenants, so divorce doesn’t automatically end the joint tenancy. That would have to be settled during the divorce process. Because each spouse has an interest in the whole property, not just half, creditors of one spouse can affect the rights of the whole property.

A more recent type of ownership in property that is available exclusively for spouses is “tenancy by the entirety.” This type of ownership provides the most protection of the assets of the couple. Unlike joint tenants, neither spouse can sign away any rights to break the interest in the property without the other’s consent. Also, there is more protection for one against the other’s creditors. The property is owned together as a product of the marriage. In Illinois, same sex couples who are in a valid civil union can also own property as tenants by the entirety.

The limit on this form of ownership, is that it has to be the one residence used by the couple during their marriage or union. If the couple is divorced, then the ownership switches to tenants in common. If one spouse passes away, though, then just as with joint tenants, the property passes automatically to the other.

Purchasing a home is clearly a major investment for anyone. It’s important to be sure it’s done properly, so that you get what you are expecting to get and there are no surprises in the future.

Tags: Chicago real estate lawyer, Decatur real estate attorney
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“The truth, the whole truth, and nothing but the truth…”

Monday, July 18th, 2011

In any trial, whether civil or criminal, a story unfolds in court that will help decide the outcome of your case. Your story will be told through the use of evidence. There are many different types of evidence, including both words and tangible things, and each helps to paint the full picture of the people and events of your case. It is the way that you will prove the facts that will help you in your trial, and the way you will attempt to disprove “facts” that are not accurate and that could hurt you in your trial.

The rules of what evidence is allowed to be used, and how and when the evidence can be used, are fairly complex, and frankly are a major reason that it is not a good idea to represent yourself in court. Knowing what, when, and how to introduce evidence in court is critical, as is being able to keep evidence out that should not be allowed.

Generally speaking, evidence comes in two basic categories—tangible things to look at, and testimony of witnesses. Tangible items of evidence include documents, and photographs, and other objects. Witnesses can include those who are directly involved in the events of your case, or those who are experts in the subject matter of your case.

Things:

Tangible objects can be admitted into evidence if they are relevant to telling your story. There can be an object such as a weapon in a criminal case that played a direct part and is important to proving facts of the case. These objects are almost like other players in the story, in that they are directly part of the events of the case.

There can also be objects that help to explain or establish facts of the case. For example a photograph of the physical location of the events or of injured body parts right after an accident, can help to tell your story. If the other side has a photo, on the other hand, that could be confusing or misleading because it appears to show something which isn’t accurate, you would want to have that photo barred from being used at trial.

Documents and business records are also used to show facts in a case. They can be used to show, among other things, where someone was or what someone did. They would also include letters and emails which further illuminate the facts. In some cases where records are regularly kept about certain facts and procedures, if there is not a note about something being done, it may be assumed from the absence of a note that it didn’t happen. For example, in a medical malpractice case, where you can show that a nurse always noted every time a medication was given, you may be able to infer from the absence of an entry about the medication, that it wasn’t given at that time.

Words:

Witnesses testifying in court provide a major part of the telling of your story to the judge or jury. Attorneys for both sides will question each witness and the judge or jury can decide based on what they see and hear, whether they believe what the witness has to say.

A witness that has first-hand knowledge of the facts of the case, can testify about those facts that he or she knows and observed. These witnesses should not be giving opinions about other facts of the case, nor should they be offering conclusions about hypothetical questions. They are also generally not supposed to testify about what they heard other people say outside of court. This is called “hearsay” evidence, and other than some exceptions, the general rule is that hearsay evidence is not allowed to be used to prove facts.

Unlike a typical witness who has first-hand knowledge of the facts of the events, an expert witness is allowed to give an opinion about an aspect of the case. An expert witness will first have his or her credentials set out and show that he or she is qualified as an expert in a particular field. Then questions can be asked about conclusions based on other evidence. Expert witnesses are commonly used in injury cases, for example, to help prove or disprove issues. If there has been a head trauma, a neurologist for each side may testify based on the medical records or examinations as to how the trauma may have happened, and what the future may be for recovery.

Again there are many very complicated rules about admitting and excluding various kinds of evidence during a trial. Lawyers who are very experienced and skilled in the rules of evidence can make a large impact on your ability to tell your story in court in the best possible way.

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Illinois Family Law Attorney – Unreasonable roadblocks to divorce can cost you.

Friday, July 15th, 2011

Going through a divorce isn’t easy on either spouse. But sometimes one side can put up unreasonable roadblocks to delay or obstruct the process, or to try to gain an advantage. Illinois law provides a way to prevent such abuses of the system, so you don’t have to just accept it. The spouse who is acting unreasonably and without good purpose can be assessed sanctions, and have to pay money to help compensate for the expenses that the actions have caused.

Recently in Illinois there was a case where the ex-husband used religion as well as the court’s processes to continue his entanglement with his ex-wife. They were married under orthodox Jewish law, which included a marriage contract. As part of their marriage agreement, it was implied that the husband would provide for a Jewish divorce called a “get.” This get was necessary for the wife to be able to remarry in the Jewish faith.

Though the husband had initiated the divorce proceedings initially, he would not give his ex-wife the get. She went to court to enforce his promise to her that he would give her the get. But he held firm to his refusal to give it to her, and dragged out the court processes. As the wife brought her arguments to the court, the husband just reiterated his one argument, which was generally stating that the wife’s case authority for her position didn’t apply.

The court continued to tell him that he was wrong about his legal argument, and yet he didn’t abandon his “position.” Likewise, he was told that the law could enforce the promise he had made to give his wife the Jewish divorce, and yet he did not give up his unsupported opposition to that either.

Because of the husband’s conduct in repeating the same unfounded argument in response to every court action, even after the court ordered otherwise, he was sanctioned and had to pay his wife’s attorneys’ fees. The court said that there didn’t seem to be any reason for his behavior other than to delay or lengthen the process, or to harass his ex-wife.

Whether someone is using a religious custom or a court process improperly and unreasonably, you don’t have to sit back and take it. You can, as this wife did, take action and ask the court to order done what should have been done voluntarily. And if you’re forced to spend money for harassing or baseless court processes, then you can ask to have those fees paid by the one causing them to be incurred.

Tags: Champaign family law attorney, Schaumburg family law attorney
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Performing multiple job duties may still not entitle you to overtime pay.

Thursday, July 14th, 2011

Working in a business with relatively few employees means the owner may rely on you to step into many different roles at work at the same time. Whether you’re called a “manager,” a “supervisor,” or a trusted “employee” may not be very relevant to what you actually do at work day to day. But for the purposes of whether you are entitled to overtime pay, or whether you’re exempt from the requirement to be paid overtime, your classification can make all the difference.

Generally, you are exempt from being paid overtime for your work if you are paid over a certain amount, and you primarily function as a manager over two or more other employees, where you have the authority to control their hiring, firing, etc. While most of those factors can be quantified, there is often grey area as to whether you should consider your primary duty to be management.

Sometimes the structure of a company allows for a manager to spend most of his or her day doing things that we would classically think of as management functions. They hire, train, and supervise employees; they schedule, direct, promote, and fire employees; they make purchasing decisions; they deal with the public.

But often times managers need to do all those things, plus work the regular operations of the business. In a retail store, for example, managers may also work the register, stock shelves, and clean up. The non-management types of duties can definitely seem to take more time out of the day than the more typical management duties.

Where job responsibilities are blended, and you’re spending your day as more of a worker than a manager, should there be an entitlement to overtime pay? To answer the question, you should look at the character of how the work is being done.

Generally, a manager is considered exempt from overtime pay if he or she has the authority to make the decisions when to perform the different duties. Having control over when to handle business operations and when to perform non-management duties is a key factor. If you are performing some management functions, but you are directed by someone else to do the management duties and then to do the non-management duties for specified periods of time, you are likely not a manager and may be entitled to overtime pay.

A woman who worked as a manager at a dollar store believed she spent most of her work day running the register, handling stock, or talking to customers, and therefore she was entitled to overtime pay. However, what she overlooked, was that while she was performing those non-managerial tasks, she was also the person responsible for what was going on in the store: how the business was running; whether there was any theft; how the profits were going; and what else needed to be done to keep the store running smoothly.

She was performing her roles concurrently, but most importantly she never stopped being a manager while she was doing other tasks. She was therefore exempt from being entitled to overtime pay.

You can wear many hats at work, but the way you wear them and whether the decisions are up to you or not can weigh heavily in whether you can get paid for overtime.

Tags: Lake County overtime lawyer, Wheaton overtime attorney
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When Illinois employees must be allowed a break from work.

Wednesday, July 13th, 2011

Here are five situations in which most employers are required by Illinois law to give their employees time off:

1. School Visits: If school conferences or classroom events can only be scheduled during working hours, you are entitled to time off to attend those educational activities for your children. This is unpaid time, and you are limited to eight totals hours for the school year, and no more than four hours on any particular day.

2. Voting: Employees whose work schedule doesn’t allow for two hours to vote either before or after work, may have two hours of paid time off during the work day to vote. The employer can control which two hours are used for voting.

3. Jury Duty: Employers are required to allow their employees time off of work for jury duty, without penalty. If you are called to serve for jury duty, you may take the time off that is required to satisfy your obligation, and you cannot lose your job during that time. Generally, though, the time off is unpaid.

4. Days per Week: For most employees, if you have worked six days in a week, you are entitled to 24 hours off to rest. If you want to work seven consecutive days, it can be allowed in certain circumstances.

5. Hours per Day: Generally, you are entitled to a meal break during your day if you are working 71/2 hours continuously. The break should be at least 20 minutes long, and be given no later than 5 hours into your work period.

Tags: DuPage County employment lawyer, Illinois mandatory breaks
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