The Docket - December 2022

2022 LCBA OFFICE RENTAL PRICING

CONFERENCE ROOM

For meetings only. Seats 16 – 20 comfortably

During business hours (8 am – 5 pm)

• Member- Free

• Non-Member $150/1st hour. $50/hour after

• Non-Member, Not-for-Profit: $25/hour

After Hours (5 pm – 9 pm)

• Member - $25 per hour

• Non-Member – Not Available

• Non-Member, Not-for-Profit: $50 per hour

MEMBER CENTER “The Bar”

Accommodates up to 100 people

During business hours (8 am – 5 pm)

Members (add $25/hour for after hour events)

• Meeting only (individual or group, no food or beverages served: Free

• Self-Service reception or party (provide own alcoholic beverages): $50 per hour

• Hosted beer & wine reception or party (beer & wine provided by Association): $250/ 1st hour, $50/hour after

Non-Members:

(add $50/hour for after hour events)

• Meeting only (individual or group, no food or beverages served): $50 per hour

• Self-Service reception or party (provide own alcoholic beverages and food): $300/ 1st hour, $50/hour after

• Hosted beer & wine reception or party – Not Available

Non-Member, Not-for-Profit: (add $25/hour for after hour events)

• Meeting only (individual or group, no food or beverages served): $25 per hour

• Self-Service reception or party (provide own alcoholic beverages and food): $150/1st hour, $25/hour after

• Hosted beer & wine reception or party – Not Available

Association Committee Meetings

(Conference Room or Member Center)

Without beer & Wine - Free

With Hosted Beer & Wine - $150 flat fee (for 5 – 15 people), $200 (over 15 people)

Room rentals are based on availability. Rentals include use of A/V already in room (phone, TV, Speaker. WIFI).

All rentals include free parking in our large, well-lit,

45 vehicle parking lot adjacent to the LCBA building.

Contact the LCBA Office at 847-244-3143 or info@lakebar.org

A publication of the 300 Grand Avenue, Suite A Waukegan, Illinois 60085 (847) 244-3143 • Fax: (847) 244-8259 www.lakebar.org • info@lakebar.org

THE DOCKET EDITORIAL BOARD

Jeffrey A. Berman,Co-Editor

Hon. Charles D. Johnson,Co-Editor Jennifer C. Beeler

Kevin Berrill

Hon. Bolling W. Haxall

Hon. Daniel L. Jasica

Hon. Christopher M. Kennedy Jennifer Luczkowiak

Kevin K. McCormick

Hon. Raymond J. McKoski

Shyama Parikh

Stephen J. Rice

Neal A. Simon

Hon. James K. Simonian Rebecca J. Whitcombe Alex Zagor

STAFF

Greg Weider Executive Director Jose Gonzalez Assistant Executive Director Nancy Rodriguez Receptionist

THE DOCKET • Vol. 29 • No. 12 • December 2022

To place an ad or for information on advertising rates, call (847) 244-3143. Submission deadline: first day of month preceding the month of publi cation. All submissions must be made in electron ic format (high resolution PDF or JPG format at a resolution of 300 pixels per inch or more.) See www.lakebar.org/page/Docket_Advertising

The Docket is the official publication of the Lake County Bar Association, 300 Grand Avenue, Suite A, Waukegan, Illinois 60085 (847) 2443143, and is published monthly. Subscriptions for non-members are $45.00 per year.

Reproduction in whole or part without permis sion is prohibited. The opinions and positions stated in signed material are those of the au thors and not necessarily those of the Associa tion or its members.

All submitted manuscripts are considered by the Editorial Board. All letters to the editor and articles are subject to editing. Publications of advertisements is not to be considered as an endorsement of any product or service adver tised unless otherwise stated.

The Fifth Amendment in Civil Cases

In the normal course of litigation, a civil case and a criminal case do not typically intersect. Regardless of what you practice, I think every at torney will agree that the

world of civil litigation and the world of criminal litigation often represent two diverse areas. In the past year and in recently publicized trials, how ever, I have seen a few examples of cases that have concurrently on going civil and criminal actions. Whether these cases involve public acts of violence or criminal conduct occurring during the scope of employment, when these cases do over lap, it is not uncommon for a civil lawsuit to be filed before a defendant is criminally sentenced. In these cases, civil attorneys may elect to ride out the criminal action before written and oral discovery starts due to the defen dant’s potential for invok ing the Fifth Amendment privilege against self-in crimination. In other words, in a civil deposi tion, a defendant who has

President’s Page The

been criminally charge will often refuse to answer questions about the civil case due to the potential that it could incriminate him or her in a pending criminal case.

This month’s Pres ident’s Page works to highlight this overlap and call out how the Fifth Amendment’s scope applies in civil cases. In short: unlike a criminal case, the decision to plead the fifth rather than an swer directly is considered an answer. If a defendant invokes the Fifth Amend ment privilege rather than answering a question, then this can be used as evidence in a civil case. Cases such as 10-Dix and Martin-Trigona support that a pending criminal action “does not excuse a witness from testifying in a civil proceeding unless there is a nexus between the information sought

BY TARA R. DEVINE PRESIDENT

and the risk of criminal conviction.” 10-Dix Bldg. Corp v. McDannel , 134 Ill. App. 3d 664 (1st Dist. 1985), citing Martin-Trigo na v. Gouletas , 634 F.2d 354 (7th Cir. 1980).

To be clear, the fact that the Fifth Amendment privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection. Lefkowitz v. Cunningham , 431 U.S. 801, 805 (1977). A criminal defendant is entitled to Fifth Amendment pro tection in either a civil or criminal context. When raised in either type of case, the provisions of the Fifth Amendment start out with an assumption that the amendment’s protection applies. Sim ilar to civil privileges, one should move forward with a presumption that a waiver is not likely to occur. Id. , citing Johnson

Tara Devine President

Katharine Hatch

First Vice President

Danny Hodgkinson Second Vice President

Kevin Berrill Treasurer

Jeffrey Berman Secretary

Joseph Fusz

Immediate Past President

Hon. Jacquelyn Melius

Craig Mandell

Sarah Raisch

Jeffrey O’Kelly

Jeremy Harter

Judy Maldonado

v. Zerbst , 304 U.S. 458 (1938).

The Fifth Amend ment, regardless of whether used in a civil or criminal case, is “[t]he constitutional guarantee against self-incrimination [which] protects a witness from being forced to give testimony leading to the imposition of criminal penalties, but it does not insulate a witness from every possible detriment resulting from his testi mony.” Giampa v. Ill. Civil Service Comm. , 89 Ill. App. 3d 606, 613 (1st Dist. 1980). While a presump tion against waiver is appropriate, the mere fact that a defendant invokes the Fifth Amendment privilege does not mean that the person does not have to comply with discovery. The Supreme Court in Hoffman v. Unit ed States held that a wit ness can properly invoke the Fifth Amendment protection when he or she has “reasonable cause to apprehend danger of self-incrimination from a direct answer.” 341 U.S. 479, 486 (1951). The Court in Hoffman recognized the long-standing principle that the Fifth Amendment privilege extends to both answers that may lead to a con viction as well as answers that “would forge links in a chain of facts” even if, alone, the answer may not lend itself to criminal activity. Id. at 488. There fore, no matter the type of litigation, a party who “reasonably apprehends a risk of self-incrimination” may claim the privilege. This is true even if crimi nal proceedings have not

yet been initiated. 10-Dix Bldg. Corp ., 134 Ill. App. 3d at 664. When the pos sibility of criminal pros ecution does not exist, a deponent’s right to assert the Fifth Amendment privilege does not exist either.

A commonly raised question arises in the following context: if a defendant invokes the Fifth Amendment at a civil deposition and the criminal action is later extinguished, can an attorney re-depose the witness now that the Fifth Amendment privilege has no application? A second deposition is generally not warranted, as the decision to plead the fifth rather than answer directly is considered an answer. Unlike a crim inal case, pleading the Fifth Amendment “ does not prohibit an adverse inference against litigants who refuse to testify in response to probative evidence against them.” Indep. Trust Corp. v. Hur wick , 351 Ill. App. 3d 941 (1st Dist. 2004) (emphasis added). This has come up in civil disciplinary hearing cases in which the court has stated that “it is apparent that the trier of fact in a civil case, unlike a criminal case, is not barred from considering a witness’ refusal to testify.” Canter v. Cook County Of ficers Electoral Board , 170 Ill. App. 3d 364, 370 (1st Dist. 1988) (emphasis added).

In other words, a civil attorney can point out to a jury that a deponent could have answered a question “no,” but instead chose to plead the fifth.

For example, in a car ac cident case that involves drunk driving, an adverse inference is proper when the deponent does not deny being intoxicated at the time of the accident but instead invokes the Fifth Amendment in a civil deposition. It would likely follow then, based on civil courts’ treatment of pleading to the fifth as an answer, that if a depo nent tried to change his or her answer at trial to a di rect answer (such as from pleading the fifth to “No, I was not intoxicated”), then the deponent could potentially be impeached with his prior refusal to directly answer based on the previous invocation of the fifth amendment.

That leaves two op tions in cases that involve contemporaneous civil and criminal cases: 1) de pose the defendant early and treat any pleadings to the fifth as adverse refus als to answer at trial, or 2) wait for the criminal case to be disposed of so that a deponent cannot in voke the privilege. Either way, it is a scenario that civil attorneys should take into consideration before initiating discovery. As mentioned, as of late civil

and criminal actions seem to be overlapping more and more as many inci dents of public violence have been followed swiftly by civil action. Whether you represent a criminal defendant or a civil plain tiff, it is important to keep the differing applications of the Fifth Amendment in mind.

The 2 2 2 2

Calendar of Events

Docket Editorial Board Meeting

December 1, 2022 12:15 PM Zoom

LCBA Holiday Party December 2, 2022 5:00 PM LCBA Office

Community Outreach & Diversity Committee Meeting December 6, 2022 12:15 PM Zoom

Local Government Committee Meeting December 27, 2022 12:15 PM Zoom

The Year in Review

ChiefPageJudge’s

This year has truly flown by. It seems like only yesterday that I was sit ting down to pen my first Docket installment. Not to spend a lot of time on a 2022 retrospective, but it

was a remarkable year for the Mighty 19th Judicial Circuit.

As the year began, we were still working on developing a strategy to resume—or come close to resuming—normal court operations. With the help of all of our justice partners, the bar, and the outstand ing staff of our circuit, we were able to resume all of our pre-pandemic court op erations. The new year also ushered in some systemic change to the structure of the circuit.

Our divisions were re-organized with the creation of the Restorative Justice Division. This move allowed for a consolidation of our problem-solving courts and juvenile courts under the leadership of Judge Christy Bishop.

The focus of these unique courtrooms transcends the traditional function of our courtrooms and places an

emphasis on working with the participants in these proceedings to facilitate truly transformative out comes. Looking back on the success of the first year of this structural change makes me optimistic for all of the positive results in years to come.

In addition to organi zational change, the circuit also formed a committee to oversee the implementa tion of the Crime Victim’s Services Fund. This fund was created by statute and is a means to support organizations that provide services to victims and their families. The committee has vetted applicants and evaluated their proposals. It is envisioned that the com mittee will meet annually to continue this process.

My short “look back” on 2022 wouldn’t be complete without writing about changes in the judiciary. 2022 began with the de

BY CHIEF JUDGE MARK L. LEVITT

parture of my predecessor, Judge Diane Winter, and ends with the retirement of Judge Mitchell Hoffman.

The ranks of our judi ciary were not only affected by well-earned retirements. I am so very proud that two of our colleagues will be moving up—literally—in the judicial ranks: Jus tice-elect Chris Kennedy will be joining the Second Appellate District, and Justice-elect Liz Rochford will be joining the Illinois Supreme Court! While we will miss them terribly, our loss is our state’s gain. But just as the year was marked by departures, it continues with a series of retentions and the arrival of newly elected circuit judges.

Judges Rossetti, Ortiz and I are all very grateful and delighted to have been retained as circuit judges. In addition, Judge Mathews and Judge Nerheim were fortunate to succeed in

their electoral races and will continue to serve the 19th as circuit judges. We will also be joined by three new circuit judges: Sharmi la Manak, John Joanem, and Chris Ditton will have joined us by the time you read this. (All of us will have been sworn in on De cember 5.) Each of our new judges will bring a wealth of diverse experience to our

circuit bench.

Sharmila will be joining us from her most recent job as First Assistant/Chief Deputy of the Criminal Division of the State’s At torney’s Office. Prior to her work in the State’s Attor ney’s Office, she served as an assistant public defender

John joins us after a 27year career as an attorney. Beginning with his time as an assistant public defend er, he established himself as a criminal law attorney. In addition, John estab lished a private practice that focused on civil litigation, juvenile law, probate, and

practice. In addition to his civil and real estate practice, he has served the people of Lake County as the Assessor of Avon Township.

I am excited for these additions to our circuit and look forward to working with each of them.

I will end by wishing all of you a wonderful holiday season and the happiest and healthiest of new years!

Why Give?

Last month, I wrote an appeal for chari table giving during the holiday season, which is now upon us. By and large, and as a society, we have all agreed that this is the ‘season of giving.’

As I reread that article, I found myself asking why is that? What is it about this season that prompted

gift-giving at this time of year in the first place?

BOARD OF TRUSTEES

Douglas Dorando President

Kristie Fingerhut Vice President

Perry Smith, Jr. Treasurer

Joan Fratianni Secretary

Nicholas Riewer Past President

Jennifer L. Ashley

Nandia Black

Scott Gibson

David Gordon Keith Grant

Louise Hayes

Fredric Lesser

Steven McCollum

Hon. Michael Nerheim

Michael Ori

Shyama Parikh

John Quinn, Sr. Eric Rinehart

Melanie Rummel

David Stepanich

Carey Schiever

As I stepped into this rabbit hole, I read several articles noting that not only does giving among friends and family occur, but that studies (albeit un-cited) have shown that charita ble giving during these two months is more than one-third of the total giving that occurs annually. Some speculate that accountants and tax breaks are to blame for this, but a quick look at history shows that the reality seems more complex than that.

Historically, people seem quick to try to con nect gift-giving with the Christmas story, tying giv ing to the three wise men in the story of Jesus’ birth. The more jaded among us point to corporate capitalism and marketing blasting us into oblivion trying to sell their wares, but these too don’t quite match with historical precedent.

A long story short, I found that books have been written on this subject matter, some concerning the transition of the monk

Foundation & Committee Minutes

LAKE COUNTY BAR FOUNDATION BOARD OF TRUSTEES

MEETING

OCTOBER 18, 2022

IN ATTENDANCE: BY ZOOM: BY PHONE: Joann Fratianni Perry Smith

Rick Lesser Nandia Black Scott Gibson Rick Lesser David Stepanich Dan Hodgkinson Louise Hayes Hon. Mike Nerheim John Quinn, Sr. Kristie Fingerhut David Gordon

Also in attendance: Greg Weider, Executive Director, LCBA, LCBF.

I. CALL TO ORDER: Meeting was called to order by Vice- President Kristie Fingerhut at 5:06 p.m.

II. APPROVAL OF MINUTES:

The Minutes of the July 19, 2022 meeting were presented for approval Motion to approve the minutes was made by Rick Lesser and seconded by Scott Gibson. Motion carried.

III. TREASURER’S REPORT: A. STATUS AND BALANCES OF LCBF ACCOUNTS: Treasurer, Perry Smith reported that the report reflects the Foundation’s donation to the Art Impact Project for $5,000 and the Highland Park Foundation for $10,000. The Foundation in curred some out of the ordinary expenses including replacement of the fire exit light and backup battery, a replaced condenser of the roof top air conditioner, some painting in Unit C and some expenses for Waukegan Roofing. Perry also reported that the balance in the RMB account has decreased by

around $2,000. Motion to ap prove the Treasurer’s Report was made by Rick Lesser and seconded by Scott Gibson. Motion carried.

B. WARRANT/ APPROVAL OF EXPENSES PAID: The Warrants incurred in July, August and September 2022 were presented for approval. Motion to approve the Warrants was made by David Gordon and seconded by Kristie Fingerhut. Motion carried.

IV. OLD BUSINESS: A. PROPERTY TAX UPDATE:

Greg Weider reported that we have yet to receive a response from the State of Illinois regarding what percentage, if any, they are willing to waive on a property tax exemption.

B. CONSTITUTION DAY: Greg Weider reported that Constitution Day went

well, but there were not as many attendees as in past years. The Foundation sponsored the refreshments. Justice Schostok and Judge Nerheim were among the speakers.

V. NEW BUSINESS: A. FUNDRAISING COMMITTEE UPDATE: The Fundraising Committee met to discuss various options for events. One suggestion was a musical event similar to the format used in “Strike A Cord.” David Stepanich was going to contact some potential venues before we set a final date and vote.

VI. ADJOURNMENT: Motion to adjourn was made by Rick Lesser and seconded by Nandia Black. Motion carried.

The Meeting was adjourned at 5:19 p.m. Respectfully submitted, Joann M. Fratianni Secretary

Board of Directors’ Meeting

The

November 2, 2022 Meeting Minutes

Minutes of the special meeting of the board of directors of the lake county bar association held via zoom video conference, on Wednesday, November 2, 2022.

CALL TO ORDER President Devine

called the meeting to order at 10:04 a.m.

ROLL CALL

Roll call indicated a quorum was established, with the following indi viduals present via Zoom: Tara Devine, President; Katharine Hatch, First Vice President; Kevin

Berrill, Treasurer; Jeffrey Berman, Secretary; Jeremy Harter, Director; Craig Mandell, Director; Hon. Jacquelyn Melius, Direc tor; Sarah Raisch, Direc tor; and Greg Weider, Executive Director. In ad dition, the following indi viduals provided input on the question presented via e-mail: Joseph Fusz, Past President; Judy Maldona do, Director; and Jeffrey O’Kelley, Director.

ACTION ITEMS

Special Agenda Item

A motion was made and seconded to approve a request by the Judicial Selection & Retention Committee for the use of non-budgeted funding to publish the Committee’s ratings for the Judicial Candidates for Illinois Supreme Court, Appellate Court, Circuit Court and Retention Judges, in area newspapers. Discussion followed. The question having been called, and a vote taken, the motion failed.

BY JEFFREY A. BERMAN SECRETARY

ADJOURNMENT

A motion was made to adjourn. Upon unanimous voice vote, the motion was declared carried. The meet ing concluded at 10:41 a.m.

BOARD OF DIRECTORS

Tara Devine President

Katharine Hatch

First Vice President

Daniel Hodgkinson

Second Vice President

Kevin Berrill Treasurer

Jeffrey Berman Secretary

Joseph Fusz Past President

Hon. Jacquelyn Melius Director

Craig Mandell Director

Jeffrey O’Kelley Director

Sarah Raisch Director

Jeremy Harter Director Judy Maldonado Director

Greg Weider Executive Director

WHY

The LCBA Lawyer Referral Service (LRS) is a valuable member benefit as well as a public service. LRS provides member attorneys with an opportunity to build business through client referrals. The service benefits the public by helping callers quickly find an attorney in the area of law in which they need help.

The LRS program is designed to assist persons who are able to pay normal attorney fees but whose ability to locate legal representation is frustrated by a lack of experience with the legal system, a lack of information about the type of services needed, or a fear of the potential costs of seeing a lawyer.

Cost is only $200 annually for a Standard listing or $350 for a Premium listing. Download the application at www.lakebar.org/page/LRS or contact the LCBA office for more information.

Monthly

Committee Meetings

DAY MEETING LOCATION TIME

1st Tuesday

Diversity & Community Outreach

Virtual Until Further Notice 12:15-1:15

1st Thursday Real Estate VUFN 5:30-6:30

1st Thursday (Even Mo.) Docket Editorial Committee VUFN 12:15-1:15

2nd Tuesday Criminal Law VUFN 12:15-1:15

2nd Tuesday (Odd Mo.) Immigration VUFN 4:30-5:30

2nd Wednesday Family Law Advisory Group (FLAG) VUFN 12:00-1:00

2nd Wednesday Civil Trial and Appeals VUFN 4:00-5:00

2nd Thursday Young & New Lawyers VUFN 12:15-1:15

2nd Thursday Trusts and Estates VUFN 12:15-1:15

3rd Monday (Odd Mo.) Solo & Small Firms VUFN 12:00 noon

3rd Tuesday Local Government VUFN 12:15-1:15

3rd Tuesday LCBF Board of Trustees VUFN 4:00

3rd Wednesday Family Law VUFN 12:00-1:00

3rd Thursday LCBA Board of Directors VUFN 12:00 noon

3rd Thursday Debtor/Creditor Rights VUFN 5:30-6:30

As Needed Employment Law VUFN 5:15-6:15

• RSVP to a meeting at www.lakebar.org.

• Meetings subject to change. Please check your weekly e-news, the on-line calendar at www.lakebar.org or call the LCBA Office @ (847) 244-3143.

• Please feel free to bring your lunch to the LCBA office for any noon meetings. Food and beverages at restaurants are purchased on a individual basis.