Illinois Lawyer Referrals and Legal Guidance

In 2002 Scott’s Law was enacted by Illinois lawmakers.  Also known and the “Move Over Law,” it governs what happens on the roadway between drivers and emergency personnel.  Penalties for its violation can be serious, so here are some things to know regarding this law.

1.  What is it?

Scott’s law came about in response to the death of Lieutenant Scott Gillen of the Chicago Fire Department.  While responding to a highway accident, he was struck and killed by an intoxicated driver.  The law is designed to protect emergency responders and highway workers when they are risking their lives on the roads while protecting citizens.

2.  What should I look for?

When you are driving, you should be vigilant for emergency personnel and equipment.  The law applies to emergency vehicles that are signaling using their flashing, rotating, or oscillating lights and police vehicles utilizing their lights or sirens.  The law also includes highway maintenance vehicles.

3.  What should I do if I see an emergency vehicle approaching?

When an emergency vehicle is approaching, you need to move as far to the right side of the road as possible, and to clear the intersection as best you can, so as to let the vehicle safely pass.  When you have moved out of the way, stop and wait for the vehicle to pass, unless you are told otherwise by an officer.

4.  What should I do if an emergency vehicle is stopped on the road?

When you are approaching an emergency vehicle with its lights on, you should slow down and change lanes if possible.  If there is another lane that is not immediately next to the lane the emergency vehicle is in, try to safely move to that lane.  If you cannot move over to a far lane, proceed cautiously and at a reduced speed that is safe for the conditions.

5.  What are the penalties for a Scott’s Law violation?

The penalties are significantly higher than a typical traffic ticket.  You could be fined up to $10,000.  You also risk having your driving privileges suspended for 90 days to up to 2 years, depending on other aggravating factors such as harm to other vehicles or people, and whether drugs or alcohol were involved.

2/8/12

When you or a loved one leaves home to live in a nursing home, you do not lose your personal rights and liberties.  Frequently people feel as though they are in someone else’s home, and therefore they do not have their own say in what happens to them.  Not so.  Illinois law, in addition to other federal and local laws, protect the rights of nursing home residents.  Here are some of the rights the Illinois Nursing Home Care Act protects:

1.  The right to control your personal financial affairs, and personal property.

You have the right to continue to manage your own finances, as you were before you moved to the nursing home.  If a resident is a minor or has a guardian, then the parent or guardian may manage the financial affairs.

Also, you have the right to have and use your own personal clothing and property, unless there is some medical reason preventing this.  You may keep your personal things with your in your living area.

2.  The right to be a part of your medical decisions and treatment.

You may continue to consult with your own personal physicians, even while living in a nursing facility.  Also, all of your medical information including diagnosis, treatment, and prognosis, belong to you.  You have the right be informed about all of these matters, and all of the information the physicians and nursing home have.  To the extent you are able, you may be involved in your care and treatment plans.

Just because you are in a facility that is public in nature, your medical care is still private.  Personal, medical information should be respected and kept confidential.

3.  The right to practice your own religion.

Nursing home residents do not lose their freedom of religion.  You may ask for arrangements to be made for attending a service in your own religion of choice.  And further, the facility may not impose any religious beliefs or practices on you that you do not support.

4.  The right to be from inappropriate restraints.

Sometimes even well-meaning staff may wrongly think that they should use physical restraints if they think that the resident may resist care.  But restraints and confinements may not be used to either punish a resident, or for the convenience of staff.  There must be proper procedures followed if any such system is used.

5.  The right to have visitors and communication.

Whatever your choice of communication, whether it is mail, phone, or visitor, should be respected and allowed.  Privacy in those visits and communications should also be protected.  Reasonable visiting hours may be enforced, as well as medical restrictions.  But generally the facility should help you to be able to communicate with others you choose.

2/1/12

Whether you have shared custody or sole custody of your child, one parent generally cannot make the decision alone to move out of the state of Illinois with the child.  Here are some factors to consider, if you are wanting to make a move.

1.  A petition should be filed with the court asking permission.

If the child has been living in Illinois, generally that is where the petition would be filed.  You would be asking the judge to grant you the right to remove your child from the state.  If the other parent objects, you would have the responsibility to prove your case as to why the change is right.  This could take time, because both sides need adequate time to prepare and present their arguments.  So it is not a decision that can be made at the last minute before you want to be settled somewhere else.

2.  The judge will base the decision on what is in the best interests of your child, taking many factors into account.

Regardless of how badly you may feel that you need a change, or another state is more desirable, if it is not overall in the best interest of your child, you may not be able to move out of the state.  The judge will look at the specifics of your situation and the proposed move, in light of factors such as:  whether the move will enhance the quality of life for you and your child, and in what way; whether your move is based on bad motives, rather than a positive plan; whether the objection to the move is based on bad motives; what the effect will be on the other parent’s visitation, and if it is possible for an appropriate visitation schedule.

3.  A solid plan for a good, enhanced quality of life will go a long way to justifying the move.

The judge will look at many aspects of the new life you are proposing in the new state.  You can show specifics about the community, school system, other family nearby and other support system, and the positive effect it will have on your life that your child will also benefit from.

4.  Problems can arise if paternity has not been established.

If the parents have not been married, and paternity has not been established, it is difficult for the father to prevent the move.  But that does not necessarily mean that the mother is free and clear to move with the child.  The father could take the steps to establish paternity if he knows you may be planning to move, and could then hold it up.  Also, if you move first, and then paternity is established, you may have to return to Illinois to present your case to the judge.

5.  A short vacation out-of-state is generally not so complicated.

In most situations, there does not need to be a complicated procedure just to take a reasonable vacation outside of Illinois.  Usually, with notification to the other parent as to where and when you will be going, along with contact information for the child, there isn’t a problem.

1/25/12

For those whose jobs involve working hard to make a sale in order to make money, you know how you count on your commission checks.  But do you know what your rights are when it comes to collecting those commissions?  These are frequent questions we get from employees involved in sales.  Illinois law has protections for sales employees. Here are some facts to know about collecting sales commissions.

1.  Who is protected by Illinois’ laws on sales representative’s commissions?

The law covers workers that are independent contractors and not employees of the company.  This includes workers that are basically controlling the way they cover a particular area of sales for their employer.  They are paid a commission on their sales, which means that a percentage of the total sales or profits they bring in gets paid to them.

2.  When are my commissions supposed to be paid while I’m still working for the company?

Commission payments are more complicated than other compensation, because usually your commissions are not owed to you right after you make the sale, but they have to wait until the customer pays and the transaction is complete.   Illinois law sets out rules for paying commission to sales reps during the course of their job.

If you have a contract that specifies when commissions should be paid, then those contract provisions govern the payment.  If there is no contract provision for commission payments, then you can look to the way the company has handled commissions with you and others in the past.  If there is no past history with the company that can guide the commission payments, then industry standards for your type of sales business in the state of Illinois should guide when you should be paid.

3.  If I have been fired, how long does the company have to pay me the commissions I have already earned?

Your final commission check unfortunately cannot always be paid to you at the time of your termination, because you likely still have sales that are finalizing and commissions therefore that are not due yet.  But for those commissions that have come due when you are terminated, the company has 13 days from that date to get you your money.  For the commissions that have not finalized and come due at the time of your termination, the company has 13 days from when the commissions become due and owing to you.

4.  What happens if I have not gotten my commission payments and they are past due?

Illinois law protects sales representatives from not getting paid what they are owed in commissions.  The law also tries to discourage companies from firing workers before their commissions are due and not paying them.  Companies that don’t follow the rules for paying commissions can be required to pay you your attorneys’ fees and costs in trying to collect your payments, in addition to what you’re already owed.  Also, the company can be assessed other penalties that they have to pay, if their actions warrant.  The message is clear that it can be more expensive not to pay you, then to pay you properly in the first place.

5.  My employer wants me to agree that these rules do not apply to my commission payments.  Is this allowed?

No, the law itself says that any attempt to have you sign away your rights to be protected under the sales representative laws will not hold up.  You cannot sign a contract that keeps you from being paid the commissions that you are entitled to, in a timely way.

1/18/12

In every lawsuit, there is a cut-off period for filing, called a statue of limitations period.  Once the time has passed, you may be barred forever from pursuing you case, even if it would have otherwise been very important and successful.  So here are some things to know concerning statutes of limitations in lawsuits.

1.  Rules.

Illinois law sets out specific rules for computing the amount of time you have to file your lawsuit.  Different types of cases have different time periods, and figuring out when the time starts ticking and when it ends can be trickier than you might imagine.  Some of the rules include the definitions of “month” and “year” and what to do when the last day for filing falls on a weekend or court holiday.

2.  Exceptions.

There are some exceptions to the ordinary time periods in the law.  Minors generally have a period of time that runs from the day they turn 18 to file a lawsuit.  Similarly, someone with a disability that would prevent them from being able to pursue their lawsuit has a period of time from when their disability ends.  In both cases the time does not start running until they are legally able to pursue their case.

3.  Contract cases.

In a lawsuit that concerns a written contract, you generally have 10 years to file suit, and 5 years on an agreement that is not in writing.  There can be exceptions to these periods where, for example, the subject matter of the lawsuit falls into a different category with a different statute of limitations.  In those cases, it would depend on the specifics of the dispute as to whether it was a contract dispute or it would fall under the other category.

4.  Injury cases.

Personal injury lawsuits generally have a two-year period for filing from the date of the injury or death.  But since personal injury covers a very large variety of types of lawsuits, more specific deadlines may apply to a particular case, rather than the general two-year period.  For example, in a lawsuit alleging damage to your property, you would generally have 5 years from the date the damage was caused.  Also, for lawsuits for defamation, which involves injury caused by someone’s written or spoken words about you, the statute of limitations period is one year.

5.  Delay due to discovery time.

Some cases extend the time to file your lawsuit, because you may not have been able to know right away that you were injured as a result of someone else’s negligence.  An example of this is a lawsuit for injuries caused by a defective product.  The ordinary deadline is two years from the date of your injury.  But the two years may not start to run until you knew or should have known about the injury.  There is an 8 year cap though on filing the lawsuit.  Other areas of the law allow for extra time for discovery of the facts of the injury as well.

And if someone that you would otherwise have a claim against purposely hid the facts from you that would give rise to filing the lawsuit, then there may be 5 years to file the lawsuit from the time you found out about those facts.  This is called fraudulent concealment.

1/11/12

Illinois has many rules about the formalities of executing a will.  They may seem simple and straightforward, but complicated issues can arise, and they are better dealt with by you now, than dealt with by your loved ones later.  Here are some of the issues relating to the signing and witnessing of a will in Illinois:

1.  Signing the Will.

The will itself must be in writing, and be signed by the testator (the one whose will is being executed).  At the time the will is signed, the testator needs to be at least 18 years old, and of sound mind and memory.

2.  Witnessing the Will—How to Do It.

At least 2 credible witnesses sign or “attest” to the will.  The witnesses sign in the presence of the testator, and generally in each other’s presence as well.  Like the testator, the witnesses also should be of sound mind at the time they are witnessing the will.

3.  Witnessing the Will—Who My Do It.

In addition to being credible, the two witnesses should not have any financial interest in the will, which rules out beneficiaries and executors as witnesses.  Beneficiaries are people who are included in the will to receive some money or property.  Because they have a direct stake in the will, they should not sign as one of the two required witnesses.  Likewise, executors are considered to have an interest in the will, and should not serve as one of the required witness to it.  Executors are people or companies (such as a bank or law firm) who will perform the tasks necessary to fulfill the terms of the will.  They will gather all the property that is part of the testator’s estate, and pay money that is due to any of the testator’s creditors.  They will then distribute the property according to the testator’s wishes that are expressed in the will.  Executors are paid a fee for doing this work, so people who are named as executors have a financial interest in the will and should not be witnesses.

4.  “Extra” Witnesses Who Have an Interest.

An executor or beneficiary sometimes signs as a witness to a will if they would be the third witness, since only two are required.  The mere fact that they have signed the will also, does not necessarily affect the validity of the will or what they may receive by the will.  If, however, one of the interested parties needs to testify later about the validity of the will as one of two witnesses, then they will lose what the will provides for them.  In the case of the beneficiary, he or she may receive what would have been given according to Illinois law when there is no will at all.   So even though this may be allowed, it is better to avoid having a beneficiary or executor witness the will at all.

5.  Once Done, It Must Be Formally Undone

After the formalities of execution of a will, that will remains in effect unless it is formally revoked.  Even if the circumstances of the testator’s life change in ways that impact the terms of the will, it does not become invalid.  The law regarding formal revocation of wills is attempting to avoid a problem later, where there appears to be two valid wills.  So the best method to revoke a will, is by properly executing a new will, which states that the prior will is revoked.  There are other formalities which may revoke a will as well.

1/4/12

In Illinois, crimes can be classified as misdemeanors or felonies.  Though misdemeanors are considered to be less serious than felonies, there can still be lasting negative consequences of a misdemeanor charge, if not handled properly.  Here are 5 facts about misdemeanor charges that are most frequently asked about.

1.  What is the difference between a misdemeanor and a felony?

Felony charges carry higher penalties, because they are considered more serious crimes.  Misdemeanors have a maximum jail time of 364 days, in addition to the possibilities of probation, community service, and/or fines.  Often felonies and misdemeanors involve similar crimes, but the ones that are charged as felonies have an extra factor that warrants the higher level of punishment.  For example, there are crimes that are charged as misdemeanors if they are a first offense, but they become felonies if there is a repeat offense.

2.  Are all misdemeanor crimes treated alike, or are there differences among them?

Misdemeanors are divided into 3 classes, in order of their seriousness, and therefore their possible punishment.  The most serious is the Class A misdemeanor, which includes domestic battery and retail theft.  For these crimes you can receive up to 364 days in jail, and fines up to $2500.  Class B misdemeanors carry a punishment of up to 6 months in jail, and fines up to $1500.  Included in this category are drug possession charges, depending on the amount of possession, and harassment charges.  Lastly, Class C misdemeanors are punishable by 30 days maximum in jail, and up to $1500 in fines.  Assault and lesser quantity drug possession charges are part of this class.

3.  What is “supervision,” and how does it work?

Court supervision is the desirable goal for the outcome of a misdemeanor charge.  It means that you have a period of time with certain conditions—mainly that you are not convicted of another crime—and after that time, if the conditions are met, your case can be dismissed with no conviction.  Generally the period of supervision ranges from a few months, to two years. Whether you are granted supervision is up to the discretion of the judge, and it is not available for felony charges.

4.  How is probation different from supervision?

Probation is similar to supervision, in that there is a period set for you to demonstrate you have satisfied certain conditions.  However during the probation period, there is more active monitoring, usually including reporting to a probation officer.  And most significantly, the end result, even with all conditions met, is still that a conviction is on your record.

5.  Can I have my record cleared after a misdemeanor charge?

Often a misdemeanor charge can be expunged or sealed, which means that the record is not able to be accessed by the public.  There is generally a waiting period from the time supervision ends until you are eligible to ask for your record to be sealed or expunged.  There are some restrictions where you may not be eligible, including a subsequent conviction.