December Volume DCIIINumber Number8 4 August 20112015 Volume DXCIX

http://www.wcbarockford.org

The Magazine of the Winnebago County

Bar Association

PRESIDENT’S PAGE

I was in the midst of preparing the President's Page for The Lawyer when I read an article in the Rockford Register Star on Thanksgiving about Steve Balogh, one of our members which convinced me to "start over" in the preparation of the Page. If you haven't read the Article, I would encourage you to do so. Steve is a former president of the WCBA and a cancer free survivor of pancreatic cancer. I have known Steve since his arrival as a newly minted attorney in Winnebago County. He is a good attorney but more importantly, a "good guy." I feel the need to digress a bit to visit a humorous moment that I experienced with Steve. A number of years ago I was chairperson of the Clambake while John Holevas and Steve were in charge of prizes. The three of us went on a "shopping spree" for prizes with a final stop to purchase electronic gear at the since closed K's Merchandise. I won't provide you all the details of our experience at K's Merchandise but simply encourage you, for a good laugh, to ask either John or Steve to summarize the events that transpired at the checkout counter that day. Back on topic, in the Register Star article Steve emphasized that his bout with cancer proved to be an impetus for him to make sure that he will live for and enjoy each day, to "not sweat the small stuff" and to be thankful - each being a laudable goal and aspiration that we should all try to follow and achieve. Being thankful, to me, has a dual meaning - on the one hand asking each of us to appreciate our family, friends and all of life's little pleasures that we encounter on a semi-regular basis. However, being thankful is also accompanied by the corresponding obligation to our community and the less fortunate. I was extremely fortunate to work with John Holmstrom, Jr., another former President of the WCBA, beginning as a young "pup" attorney into middle age. John was a mentor to a number of young attorneys (you are going to have to work with me here) including Phil Frankfort, Kim Casey, Bobbie Holzwarth and me and his life epitomized the true meaning of "being thankful." He strongly believed that as attorneys we were cast in a unique, special role as citizens of the community which carried with it an obligation to give back or to pay it forward by volunteering and serving with various not for profit groups and attempting to improve the lives of the less fortunate and disadvantaged of our community. John backed this belief with his actions setting an example not only for fellow attorneys but everyone by tirelessly working for the betterment of our community. I know that numerous members of the WCBA do volunteer and assist many not for profit groups in our community by donating their time, goods and/or funds. The budgetary impasse that has been plaguing our state for a number of months certainly has placed many not for profit organizations that serve our community under financial stress making it more

Page 1 difficult for them to provide services and benefits to their respective constituencies. As we enjoy the holiday season lets all make an effort to "step up to the plate" and donate time, goods and/or funds to the not for profit organization(s) of our choice so as to assist them in fulfilling their mission to provide for the less fortunate and disadvantaged members of our community. Switching gears, with the Young Lawyers Section taking the "lead," we are commencing a process focused upon reinvigorating The Lawyer which is the primary method for the WCBA to communicate to its members. The ultimate goal is to increase and improve the content of The Lawyer in the hope that it will, once again, become a monthly publication with more substantive content in the not too distant future. There will be an initial organizational meeting for a new Editorial Board for The Lawyer on January 11, 2016 at noon at the WCBA office. You will be receiving a notice of the time and date of the organizational meeting and I would encourage any members interested in serving on the new Editorial Board and participating in the anticipated reinvigoration of The Lawyer to attend the meeting. Finally, I look forward to seeing everyone at the WCBA Christmas party on December 10th. It is a festive event, a lot of fun and a great way to jump start yourself into the holiday spirit. You should also plan to save the date of February 26, 2016 as the WCBA President's Ball, another fun social event, will occur at Forest Hills Country Club that evening. Br a d Koc h , 2 0 1 5 - 2 0 1 6 President of the Winnebago County Bar Association, is a partner in the firm of HolmstromKe n n e d yp c. A graduate of Creighton University School of Law, he was admitted to the practice of law in 1978.

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CALENDAR January 2015

Book Club meets: Circling the Sun by Paula McLain-Noon-Bar Office Editorial Board meets-Noon Bar Office Estate Section-TBD Holiday-Bar Office Closed Board of Directors-Noon Bar Office Lunch & Learn-When Can I Retire?-Savant Capital Management

February 2015

Diversity Committee-Noon Bar Office Estate Section-TBD Holiday-Bar Office Closed Board of Directors-Noon Bar Office Dinner Dance-Forest Hills Country Club

CHANGES

Page 3

Michael Smith has moved his office to 4615 East Street #202, Rockford, IL 61108 Bernard J. Natale and Meghan N. Bolte have moved to Edgebrook Office Center, 1639 N. Alpine Road, Suite 401, Rockford, IL 61107

COMMENTARY

By Tom Laughlin The current election season has brought to mind an eternal truth. That eternal truth is that it is so much easier to make things up and repeat them with increasingly louder voices with ever increasing frequency than actually say meaningful things. Sadly, the laws of physics still exist and inertia being what it is, once the above mentioned process starts, it can't be stopped. They inexorable result can be ugly. The best way for me to explain what I mean is by reference to the mythical Clang Bird. I learned as an undergraduate that there once was a large allegorical bird called the Clang Bird. It was called that because it was made of metal and over time it came to fly at ever increasing speeds in ever decreasing concentric circles until at long last, it flew its own head up its own rear end with a loud, metallic CLANG. Watch the debates. Follow the candidates' statements carefully. Listen for large metallic clangs just before one candidate after another candidates drops out. Be careful out there.

JOIN THE WCBA EDITORIAL BOARD

The newly revamped Editorial Board of the The Lawyer, the publication of the Winnebago County Bar Association will meet on Monday, January 11, 2015 at Noon at the Bar Office. President Brad Koch is committed to improving the content of your monthly magazine. If you served on the Editorial Board in years past, or would like to try it our for the first time, please come to this organizational meeting. Bring your lunch and beverages will be provided.

SUPREME & APPELLATE COURT REVIEW Criminal

Illinois Supreme Court In re Q.P., 2015 IL 118569 (September 24, 2015) (J. Kilbride) (Peoria Co.): Obstructing Justice The State appealed from the appellate court's reversal of the defendant's obstructing justice conviction, where the juvenile defendant had provided the police with the improper spelling of his name in order to avoid arrest on a warrant. The Supreme Court reversed the appellate court, affirming the defendant's conviction and concluding that the defendant attempted to evade apprehension by intentionally misspelling his name to avoid arrest. People v. Goossens, 2015 IL 118347 (September 24, 2015) (J. Karmeier) (Rock Island Co.): Terms of Probation The Supreme Court granted the defendant's PLA to determine whether section 5-6-3 (b) (6) of the Unified Code of Corrections permitted the trial court to order, as a condition of the defendant's probation, that he must become current on his child-support obligations. The Supreme Court affirmed, concluding that section 5-6-3 (b)(6) of the Unified Code - by its plain languagepermitted the trial court to order, as a condition of the defendant's probation, that he must become current on his child-support obligations. People v. Fiveash, 2015 IL 117669 (September 24, 2015) (J. Kilbride) (Cook Co.): Juvenile Charging The Supreme Court granted the defendant's PLA to determine whether he could be charged as an adult many years after he committed the crimes as a juvenile. The Supreme Court affirmed, concluding that the Juvenile Court Act permitted the State to try him as an adult for a sex crime that he allegedly committed when he was 14 or 15 years old, as he was 23 years old at the time and the statute of limitations had not yet run. In re Derrico G., 2014 IL 114463 (August 4, 2014) (J. Karmeier) (Cook Co.): Juvenile Court Act The Supreme Court granted the State's direct appeal to determine the constitutionality of section 5-615 of the Juvenile Court Act, which grants State's Attorneys the authority to object to the entry of an order of continuance under supervision in a juvenile case before a finding of guilt. The Supreme Court reversed in part and vacated in part, concluding that section 5-615 of the Act was constitutional as a consent provision, given that State's Attorneys have a duty to see that justice is done. J. Burke (joined by J. Freeman) dissented, opining that section 5-615 violated the separation of powers provision of the Illinois Constitution.

2nd District

People v. Carrenza-Lamas, 2015

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IL App (2nd) 140862 (August 13, 2015) (J. Spence) (McHenry Co.): Padilla The defendant appealed following the third-stage denial of his postconviction proceeding, at which he argued that he was not provided the effective assistance of counsel because his attorney failed to inform him of the immigration consequences of his plea. The appellate court affirmed, concluding that his attorney was not required to inform him of the specific immigration consequences that pleading guilty to a drug crime. J. Hutchinson specially concurred, pointing out that attorneys should be, as counselors, communicating these collateral consequences to their clients even though not doing so does not result in reversal. People v. Torruella, 2015 IL App (2nd) 141001 (August 17, 2015) (J. Zenoff) (Du Page Co.): BAC The defendant appealed from his DUI conviction, arguing that (1) the trial court erred by allowing a business record of the report of accuracy of the instrument used to conduct his BAC test, and (2) the State failed to prove him guilty beyond a reasonable doubt. The appellate court affirmed, concluding that (1) the "unrefuted evidence was sufficient to establish that the instrument satisfied the Department's testing standards," and (2) viewed in the light most favorable to the State, the evidence presented was sufficient to prove him guilty of DUI. People v. Casciaro, 2015 IL App (2nd) 131291 (September 17, 2015) (J. Zenoff) (McHenry Co.): Felony Murder/Reasonable Doubt The defendant appealed from his felony murder conviction, which was predicated on the State's proof that the defendant had committed the crime of intimidation. The appellate court, without answering the question of whether intimidation could ever be a predicate for felony murder, reversed, concluding that the State failed to prove the defendant guilty of intimidation (the predicate felony). People v. Kay, 2014 IL App (2nd) 130906 (July 8, 2014) (J. Spence) (McHenry Co.): Forfeiture The defendant appealed from the State's forfeiture of her eight horses, arguing that the forfeiture provision of the Humane Care for Animals Act was unconstitutional because it merely required the State to prove its case by a preponderance of the evidence. The appellate court affirmed, concluding that the sixth amendment did not apply to forfeiture hearings under the Humane Care for Animals Act.

SUPREME & APPELLATE COURT REVIEW

Page 7

SUPREME &Other APPELLATE COURT REVIEW Districts

Page 5

People 5th Districtv. Perez-Gonzalez,

2014 IL App (2nd) 120946 (June 26, 2014) (J. Schostok) (Kane Co.): Contempt v. Jamison, 2014 IL App (5th) 130150 People The defendant appealed from (Jackson his adjudication and (December 3, 2014) (J. Schwarm) Co.): sentence for direct criminal contempt for failing to testify Rule 401 (b) in his plea agreement. The appellate court as provided affirmed, concluding that the trial court's 10-year sentence The defendant appealed from his obstructing conviction, as punishment, for direct criminal contempt was not an arguing that the trial court erred by failing to comply with abuse of discretion in light of the seriousness of the Rule 401(b), which requires the court to take a verbatim underlying offense (murder) for which his testimony was transcript of a defendant’s waiver of counsel. The appellate required. court reversed and remanded, concluding that the verbatim transcript requirement of Rule 401(b) required the court to order a record of the admonishments, which the court had not done.

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SOCIAL SECURITY CLAIMING STRATEGIES CHANGE WITH THE BIPARTISAN BUDGET ACT OF 2015

By: Nicole E. Fasano, J.D., CTFA On November 2, 2015 President Obama signed into law legislation in the Bipartisan Budget Act of 2015 ("Act") which will soon put an end to two popular claiming strategies for Social Security recipients, the "file and suspend" strategy and "restricted application". This legislation is intended to close "unintended loopholes" that were created in the Senior Citizens Freedom to Work Act of 2000. Fifteen years ago on April 7, 2000, President Clinton signed into law the "Senior Citizen's Freedom to Work Act of 2000". The Senior Citizen's Freedom to Work Act eliminated the earnings test after you attain full retirement age, and also permitted you to earn delayed retirement credits if you suspended your benefit at or after full retirement age. Your Full Retirement Age ("FRA") is determined by Social Security. So, for example, an individual born in 1949 has full retirement age of 66 years of age. If you take your Social Security benefit at FRA you will receive your full benefit, and multiple claiming strategies become available. You are allowed to take your benefit after 62 years of age, however, penalties will apply based on how many months before FRA you take your benefit. Once you begin taking your benefits, your spouse can then claim a spousal benefit, which is approximately half of your benefit. As mentioned above the Senior Citizen's Freedom to Work Act allows you to delay taking your benefit until age 70 and earn Delayed Retirement Credits (DRCs) each year you wait. DRCs allow your benefit to grow by approximately 8 % a year for each year of delay past FRA up to age 70. File & Suspend Strategy Before the Act, if you were at least FRA, you could file for Social Security benefits then voluntarily suspend the benefit, while at the same time opening the door for your spouse to begin taking a spousal benefit. This strategy is called "File and Suspend". This strategy is mainly used by the higher wage earner who files and suspends so the lower wage earner can take the higher spousal benefit while delaying their own benefit. For example, if the husband was the higher wage earner, at FRA he would file for his benefit then suspend it, allowing his benefit to earn DRC's until he was 70 years of age. In the meantime, his wife would file a restricted application for spousal benefits only and would be receiving a spousal benefit on her husband's record (which would be approximately 50% of his benefit if she was FRA). The wife would then delay filing for her own benefit. Therefore, both husband and wife's individual benefits would earn DRCs, allowing them to maximize their Social Security Benefit.

Page 7 The Act eliminates this strategy. Under the Act, if the husband files for benefits then suspends his benefit, all benefits on his record would also be suspended. Therefore, the spouse would not be able to take her spousal benefit if her husband suspended his benefit. However, if you are already in a "File and Suspend" strategy then you are grandfathered in and you can continue this strategy. Furthermore, if you are FRA or will be within 180 of the Act you are grandfathered in as well if you file before the 180 day time period is up. If you or your client want to take advantage of a file and suspend strategy then a call to the local Social Security office in the very near future is imperative. Appointments to work with a Social Security agent to file for benefits are scheduled weeks in advance and with these new rules they are sure to be extremely busy. Deemed Filing and Restricted Application Before the Act, if you filed for benefits before reaching FRA, and you were eligible for multiple benefits (i.e. your benefit and your spousal benefit), you were deemed to be filing for all benefits you were eligible for at the first month of entitlement. This is called Deemed Filing. The first month of entitlement is important, especially for married couples, because deemed filing can be applied retroactively. However, if you were at FRA or older you could file for benefits and file a restricted application for only one benefit, such as your spousal benefit. Thereby allowing your own benefit to earn DRCs. The Act put an end to this strategy. Now the deemed filing rules apply after FRA. Therefore, even after you reach FRA when you file for benefits you will be deemed to be filing for all benefits you are entitled. You cannot file a restricted application. However, the Act does allow for some grandfathering. Individuals who reach 62 years of age on or before December 31, 2015 will be grandfathered. Therefore, an individual who is 62 right now can still file a restricted application when they reach their FRA. If you or your client fall into the limited category of those able to use the file and suspend strategy before April 2016, now is the time to talk about it and take advantage of the strategy if you can before the window closes and is permanently gone. There are several professionals at Alpine Trust & Investment Group who are certified in Social Security Claiming Strategies by The Corporation for Social Security Claiming Strategies. We would be happy to help answer any questions regarding Social Security claiming strategies, rules, taxes, survivor benefits and much more.

PRO BONO SPOTLIGHT On October 29, 2015 Prairie State Legal Services hosted an Open House in celebration of National Pro Bono Week. Kimberly Thielbar was introduced as the new managing attorney and Judge Rosemary Collins presented pro bono awards recognizing the exceptional work of local attorneys and law firms. They were recognized for their sincere commitment to legal services and access to justice for low income persons in our community. The 2015 Volunteer Lawyer of the Year was presented to Theresa Campbell. The 2014 Volunteer Lawyer of the Year was presented to Brian Hart. The 2013 Volunteer Lawyer of the Year was presented to Bradley Tengler. The 2015 Firm of the Year awards were presented to Barrick, Switzer, Long, Balsley & VanEvera, LLP and WilliamsMcCarthy, LLP. Thank you to all of the attorneys who participate in our Volunteer Lawyer Program. A special thank you to Rockford Bank & Trust and WilliamsMcCarthy, LLP for sponsoring this event.

From left to right: Wendy Crouch, Prairie State Pro Bono Coordinator Adam M. Fleming accepting 2015 Firm of the Year Award for WilliamsMcCarthy, LLP Kim Thielbar, Prairie State Rockford Office Managing Attorney Jason H. Rock accepting 2015 Firm of the Year Award for Barrick, Switzer, Long, Balsley & Van Evera, LLP Honorable Judge Rosemary Collins Theresa Campbell, 2015 Volunteer Lawyer of the Year

MEDIATION PROGRAM SAVES WINNEBAGO AND BOONE COUNTY HOMES FROM FORECLOSURE: STUDY FINDS AG-FUNDED PROGRAMS ARE EFFECTIVE Page 9

During the second half of 2014, Winnebago and Boone County homeowners were subject to over 640 foreclosure filings. While the consequences of the mortgage crisis and recession still loom large, a new program is providing homeowners in the area the opportunity to work with lenders to save their homes. Established in June 2014 for Winnebago County and November 2014 for Boone County, the Seventeenth Judicial Circuit Court Residential Mortgage Foreclosure Mediation Program served 116 homeowners in its first several months. The program, administered with the assistance of non-profit Resolution Systems Institute ("RSI") through funding from the Office of the Illinois Attorney General, is based in the Alternative Dispute Resolution ("ADR") Center, located at 308 West State Street in Rockford. It was established to assist homeowners struggling to navigate the court system with a fair and efficient process for resolving what happens to their homes. Among other goals, the Seventeenth Judicial Circuit and RSI sought to facilitate better communication between homeowners and lenders. A recently completed evaluation of the program for Winnebago and Boone Counties, along with the five other programs created under the Attorney General's funding, found that the mediation programs were meeting this goal. The Winnebago and Boone program accomplishes this by first helping homeowners submit their loan workout packet to the lender through an online application via HomeStart, a HUD-certified housing counseling agency. Then mediation provides a process that helps homeowners and lenders communicate, concluding with an opportunity for homeowners to decide what is their best option. Within the period studied for the evaluation, 22 homeowners were able to avoid foreclosure. Of participants completing the program, 76% were able to save their home, the highest rate among all six Attorney General-funded programs. Nearly all participants who completed the program reported satisfaction with the process, remarking that the process "brought all parties together and opened up a clear point of communication." "We established this program so that everyone has a fair opportunity to work together to determine what will happen to homes that are in foreclosure. We especially wanted homeowners to understand what their options are," said 17th Judicial Circuit Judge Eugene G. Doherty. "Whether they can afford to keep their home or not, they have been dealt with respectfully by HomeStart, the mediation program and the court." As the program moves forward, it will seek to build upon its strengths, which include the online

application process that has made it very easy for Winnebago and Boone County homeowners to participate in the program. The program will continue to improve the process of exchanging documents between the homeowner and lender to ensure that the parties have adequate time before their first mediation session to review information. Homeowners interested in learning more about or entering the Seventeenth Judicial Circuit Court Residential Mortgage Foreclosure Mediation Program should reach out to Program Coordinator Kristen Sanchez, at (815) 708-6490 or [email protected]. To see the complete evaluation results for the 17th Circuit, please visit: http://www.aboutrsi.org/pfimages/SixProgramsSixMode ls-17thCircuit.pdf. This report is part of the Six Programs, Six Models study evaluating the six programs created through the Office of the Illinois Attorney General, which can be accessed here: http://www.aboutrsi.org/pfimages/SixProgramsSixMode ls.pdf.

An Executive Summary of the Six Programs, Six Models is available at http://www.aboutrsi.org/pfimages/SixProgramsSixMode lsExecutiveSummary.pdf. Background on Grant: In May of 2013, the Office of Illinois Attorney General Lisa M. Madigan awarded multi-year grants totaling $5 million to three Illinois non-profits to foster foreclosure mediation. In the northern region of the state, Resolution Systems Institute worked with courts in Kane County (16th Judicial Circuit), Lake County (19th Judicial Circuit), and Winnebago and Boone counties (17th Judicial Circuit) to develop the three programs that RSI now administers. RSI designed and implemented the statewide cloud-based case management, monitoring and evaluation system, which made this evaluation possible. RSI also is responsible for training mediators for all the programs in the state and is working with Northern Illinois University School of Law, which has established a legal clinic under the grant to assist homeowners facing foreclosure. Dispute Resolution Institute, a Carbondale-based mediation nonprofit, is administering payments for all the mediators mediating for the grant-funded programs. More information on RSI's foreclosure programs can be found here. (Continued on Page 14)

CIVIL JURY REPORTS

Page 10

Case Name: LONNIE WAUGH and DEBORAH WAUGH v. ANDREW P. HOFFMAN, M.D. Law No.: 10 L 382 (Winnebago) Judge: The Honorable Eugene Doherty Trial Dates: September 14-21, 2015 Plaintiff Law Firm: Matthew Baker, Sandman, Levy & Petrick Defendant Law Firm: Douglas Pomatto/Michael Denning, Heyl Royster Voelker & Allen Facts of Case: On November 11, 2009, the patient presented to the hospital with abdominal pain. The defendant diagnosed him with acute appendicitis and performed an appendectomy. The surgeon began with a laparoscopic approach, but due to difficulty visualizing the structures in the abdomen, it was converted to an open appendectomy. The patient remained hospitalized after the surgery and was stable, with some question as to whether he suffered a post-operative ileus and interruption of peristalsis. Approximately four days after surgery, the patient began to show signs of serious illness. On November 17, he was taken back for a CT which showed free air in the abdomen and he was taken back for exploratory laparotomy by a subsequent surgeon. That surgeon found massive amounts of green intestinal contents in the abdomen and a 12mm hole in the ileum approximately 18 inches from the site of the appendectomy that he described as a total transaction of more than half the ileum. He resected the ileum and created an ileostomy and mucus fistula. The patient suffered from sepsis and peritonitis and remained in the hospital for more than a month on a ventilator. He was discharged to an acute rehabilitation facility and ultimately discharged home. The patient’s ileostomy was reversed several months later and he claimed daily, frequent, explosive diarrhea from that time continuing through to the time of trial. Plaintiffs claimed that during the appendectomy, the defendant general surgeon failed to find and repair the hole or injury to the patient’s ileum that was seen and repaired during the subsequent surgery. The defense agreed that some injury occurred during the original surgery but asserted that it was not able to be seen or found and repaired during the surgeon’s examination of the ileum prior to closing. The defense argued that the injury was small or only a partial thickness injury and not able to be seen, and that it weakened and opened in a delayed fashion after the surgery. The defense further argued that Plaintiff suffered from diabetic diarrhea instead of diarrhea related to the resection of his ileum. Injuries/Damages: Plaintiffs sought damages for medical bills, lost wages, loss of a normal life related to the frequent diarrhea, disfigurement and pain and suffering. Plaintiff’s spouse maintained a loss of consortium claim Specials: Approximately $569,219 in medical bills and $30,000 in lost wages. Medical Witnesses Called by Plaintiff: Dr. Thomas Michalsen, Dr. Michael Beierle Called by Defendant: Dr. Morris Mark Soriano, Dr. Anatoly RozmanExperts: Plaintiff: Dr. Ralph Silverman, St. Louis, IL (colorectal surgery), Dr. Michael Uzser, Chicago, IL (gastroenterolgy)Defendant: Dr. W. Gregory Ward, Naperville, IL (general surgery), Dr. Gregory Cohen, Chicago, IL (gastroenterology)Asked of Jury: $1.3 million Last demand: $1,000,000 Last offer: None Verdict: Not guilty SARA POTTINGER, Individually, and as Mother and Next Friend of DEVON JUDKINS and MICHAEL JUDKINS vs. UMESH GOSWAMI, UMESH P. GOSWAMI, M.D., S.C., d/b/a CHILDRENS HEALTHCARE CENTER, a Corporation, JAMISON ALLEN, JAMISON ALLEN, D.O., LLC, a Corporation, and KISHWAUKEE COMMUNITY HOSPITAL, a Corporation. Law No.: 2010 L 92 (DeKalb County) Judge: The Honorable William Brady Trial Dates: April 6-15, 2015 Plaintiff Law Firm: Sean Driscoll/Marta Kowalczyk - Clifford Law Offices, P.C. Defendant Law Firm: Douglas Pomatto/Michael Denning, Heyl Royster Voelker & Allen for UMESH GOSWAMI, UMESH P. GOSWAMI, M.D., S.C., d/b/a CHILDRENS HEALTHCARE CENTER, a Corporation. Facts of Case: The case went to trial against Dr. Umesh Goswami and Umesh Goswami, M.D., S.C. The minor child was born in July 2006. At the time of his birth, a non-party pediatrician and nurse did an assessment of the baby and found bilateral undescended testicles which were palpable in the inguinal canals. The defendant pediatrician, Dr. Goswami, did his own assessment of the baby later that same day and recorded his physical examination for genitalia as "normal male," which he testified meant that the testicles were located somewhere in the scrotum and thus descended. Dr. Goswami and his nurse practitioner went on to care for the child at sick and well child visits from birth until the child was 15 months old, at which time the family transferred care to another physician, Dr. Jamison Allen. When the child was 4 years old, he was seen by a

SUPREME APPELLATE COURT REVIEW CIVIL JURY&REPORTS (CONTINUED)

Page11 6 Page pediatric surgeon for a question of an inguinal hernia. The pediatric surgeon found the child's left testicle in the inguinal canal but could not palpate the child's right testicle in the scrotum or inguinal canal. The surgeon performed an orchiopexy to place Evidence ILLINOIS APPELLATE COURT the testicles in the scrotum. He began his surgery on the right side, and found the right testicle well above the inguinal canal DISTRICT The defendant appealedThe from hisorchiopexy first-degreewas murder and 2inndthe retroperitoneal space and brought it to lie within the mid portion of the scrotum. left delayed agg criminal sexual assault convictions, arguing that (1) the several months due to the difficulty ndof the right sided operation. The left orchiopexy proceeded several months later without People v. King, 2014 IL App (2 ) 130461 (November prosecutor made improper remarks in rebuttal, (2) the court incident. Several months after the second surgery, the child's right testicle became non-palpable again and a surgical 17, 2014) (J. Schostok) (Boone Co.): erred by admitting other it.crimes evidence, (3) he was exploration was performed. The surgeon found that the testicle had atrophied and removed deprived of the effective assistance of counsel, and (4) and the Plaintiffs claimed that the defendant pediatrician did not perform appropriate genital examinations of the child DUI court erred by curtailing his examination of certain failed to diagnose undescended testicles, and alleged that the testicles were undescended from birth until his presentation to witnesses. The defendant appealed from his DUI conviction, arguing the surgeon at age 4. Plaintiffs further alleged a failure to properly chart, failure to refer the child to a pediatric urologist and that trial the court erred by admitting into Plaintiffs evidenceclaimed that surgical intervention at 6 months of age would have failedthe to refer child to a pediatric surgeon. The appellate court affirmed, concluding that (1) the State testimony from the arresting officer concerning his attempt preserved the function and viability of the right testicle and also claimed thattothe misdiagnosis to loss of testicle, pain was free comment on theledabsence of the sexual conduct to HGN test to the defendant. The defendant andadminister suffering,anmultiple surgeries and an increased risk of infertility in the remaining testicle. evidence even though it had won a motion to exclude such that testicles at the time of the pediatrician's examination on the day of contended that because the officer didchild not demonstrate The defense argued that the had descended evidence in limine, (2) although the court erred by he was properly trained to administer the HGN test, theclinically significant condition known as ascending testicles, where birth and that the child thereafter suffered from a rare but admitting the other-crimes evidence for other than evidence unreliable. The ascend appellate previouslywas descended testicles overcourt time affirmed, to the inguinal canal or retroperitoneal space. propensity, the evidence was admissible by statute for concluding that thePlaintiffs foundational evidence regarding the bills, disfigurement, loss of a normal life (past and future), pain Injuries/Damages: claimed damages for medical propensity, and therefore no reversible error occurred, (3) HGN test was(past not and required because the officer did not and suffering future) and emotional distress. where the evidence for propensity was admissible, trial testify about the results of the test, but rather testified Specials: Approximately $10,250 in medical bills. about counsel was not ineffective for failing to object to it, and (4) his observations and the defendant’s failure toDavid comply with Beth Post, RN, Jean Gale-Blascoe, A.P.N., Dr. Umesh Goswami Medical Witnesses Called by Plaintiff: Dr. Phillips, the court did not abuse its discretion by curtailing as the test.by Defendant: Dr. Arthur Rettig, Jean Gale-Blascoe, A.P.N., Dr. Umesh Goswami Called irrelevant the questioning of a witness by the defendant regarding prostitution at a localCA bar.(pediatric urology) Experts Plaintiff: Dr. Howard Levy, Chicago, IL (pediatrics), Dr. Eric Kurzrock, Sacramento, People v. Johnson, 2014 IL App (2nd) 121004 Defendant: Dr. Mark Rothschild, Buffalo Grove, IL (pediatrics), Dr. Christopher Cooper, Iowa City, IA (pediatric urology) (November 17, 2014) (J. Schostok) (Winnebago Co,): Asked of Jury: $2,000,000, Last demand: $1,000,000, Last offer: None, Verdict: Not guilty

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CLIENTS IN FLORIDA

BY KATHY McNEELY JOHNSON Florida, that finger of land reaching out toward the Caribbean Sea with mermaids, humidity, voodoo cleanup squads, and retirees. Even if you yourself aren't ready to pick up stakes and move, every year, our clients seem to be running to the fountain of youth that is the sunshine state, Financial advisors love Florida, a land of no income tax. They often tell our clients that it makes financial sense to change their residency to Florida. Even if the client isn't moving, often they become the snowbird flying south for the winter to avoid cold, snow, ice and shovels. Even these temporary migrants often buy property. How do these events impact your practice? For those changing residence must you say goodbye? How do you help your client prepare? Chances are good that when you hear the news about your client's anticipated life changes you are reluctant to talk much about Florida and err on the side of caution thus not providing much guidance. Let's face it Florida is very aggressive regarding practicing without Florida Bar membership (like Arizona, California and New York easy reciprocity is not an option, you must sit for the trade barrier known as a bar exam) and caution makes sense. If you form a relationship with a licensed member of the Florida Bar, you can still meet your client's needs and offer guidance. Even if the client moves, it does not mean you must say goodbye. Keeping a client makes far more economic sense then having to find a replacement. Often we forget that part of our job is to market ourselves to our clients. In that spirit, here is a list of discussion points to cover with your clients in making such life changes: 1. When considering such a huge change, encourage the client to spend time in Florida during all the seasons before committing to the move. Summer in Orlando is very different than January. 2. Unless there is a matter requiring a court appearance or a real estate closing, an attorney with a physical presence in the state is not required. 3. You, in your representation, have the ability to use the services of a Florida attorney either in Florida or locally. 4. You have a standing relationship with the client. In all likelihood you have known them for years. Your client needs to be reminded that a new attorney will not be able establish such a relationship that quickly. 5. The comfort level your client has achieved with you, allows them to ask questions and seek advice more readily than if they have to find a new counselor. 6. There are many methods available for communication over the miles that allow you to

Page 13 meet "face to face." Skype is not that difficult, even for older folks, if they have internet access. 7. Illinois (for the time being) does not tax retirement income. For many clients that is the bulk of their income. They may have capital gains income which could be taxed but they are not going to have W2 type income as when they were working. However, there are more issues than tax expense that must be evaluated. Cost of living, property costs, and probate expenses are all part of the decision tree. 8. Florida probate law does not have an equivalent of our Small Estate Process. You must open a probate case even if there is only a small estate. 9. Since you wrote the estate plan, you understand what the client priorities are and how to meet those as their lives change. 10. There is a pretty good chance that the client will still have property or business within the state of Illinois even if they do move. After you cover the above, you need to start discussing what preparations and legal documents your client will need. Because of the vulnerable nature of the elder population, the likelihood they will not have family near, and the wealth that elders have accumulated, Florida has become the Mecca of fraud, exploitation, and outright manipulation. This has resulted in the Florida legislature attempting to provide protection of this population through very strict and detailed requirements of instruments such as Powers of Attorney. The shortest Florida Financial Power Of Attorney (FFPOA) I have ever seen was 18 pages. Any institution or accounts in Florida that your client holds will only honor the FFPOA. Therefore, if client is only a snowbird, and they are conducting business within the State of Florida, you should advise them to have the FFPOA. You will need to have the document drafting supervised and reviewed by your Florida Attorney. The Florida Health Power of Attorney (FHPOA) is not nearly as different or complicated. But because health providers, even here in Rockford, are becoming more skittish about HPOA forms, having a Florida compliant form will make things much simpler for you client. As with the FFPOA this should be prepared under the supervision of a Florida attorney. Finally there is the Estate Plan. What changes do you need to make where Florida property is involved? First there is a very strong and specific Homestead provisions in the Florida Constitution. This provision restricts an owner selling out from under a spouse, protects the property from forced sell to satisfy creditors, may include as much as 160 acres if in unincorporated, and provide a reduction in assessed value for ad velorem tax. Additionally the spousal share and inheritance

CLIENTS IN FLORIDA

requirements must be reviewed. Finally, Florida does not have an equivalent to our Small Estate administration. While they have a truncated proceeding for Small Estates, it does necessitate the filing of a Probate case. Remember, even if the decedent is not a Florida resident, if they own Florida property directly, they must open a Probate case. Finally there is not a Transfer on Death provision for Florida real estate. You have likely addressed the transfer on death beneficiary provisions, on the client's IRA's, 401k, investment, and bank accounts, or established a family Trust. In planning for Florida, you will need to determine if Florida real estate should be placed within the trust. If there is the possibility that your client may one day need Medicaid for long term care and the property is placed originally upon purchase within the trust, it is less likely that the five year look back rule would apply. You should also discuss the possibility of an irrevocable trust as a planning instrument. Finally, any trust should also have a triggering provision allowing for the creation of a Special Needs Trust for any beneficiary that becomes disabled and uses government based benefits that have asset restrictions. While the Trust is subject to Illinois law while the client is still an Illinois resident, you should make sure that it will comply with Florida law in its execution and you will need the Trust Deed prepared by a Florida attorney. So what have we learned? • Just because you client wants to go to Florida you don't have to lose them. • You may need the assistance of another attorney who is licensed in Florida but you can still advise your client. • Probate is a necessary requirement if you have property passing by will in Florida. • Financial Powers of Attorney are measured by weight in Florida and will be required if you do business within the state. • Health Powers of Attorney should also be prepared to the Florida requirements. • Trusts are essential for you client if they own property in Florida. • Yes the voodoo squad is real. The Dade County Courthouse (Miami) has a special squad in the maintenance department to clean up Santeria practitioners' (a religion often known colloquially as Voodoo) animal sacrifices made on the Courthouse steps. These offerings are to help assure them of a favorable resolution to their court case. With a little research, collaboration, and planning you will be able to assist any client when they discuss the Florida option.

Page 14 Kathy McNeely-Johnson, was admitted to the Illinois Bar in 1994 and the Florida Bar in 1995. She currently maintains a private practice, Legal Serenity PC and works in the areas of business planning, estate planning, real estate transactions and meeting the legal needs of the LBGT community. She is a recovering former Asst. Public Defender.

FORECLOSURE MEDIATION

(Continued from Page 9) Background on Resolution Systems Institute Resolution Systems Institute (RSI) is a non-profit organization that was founded in 1995. RSI's mission is to strengthen justice by enhancing court alternative dispute resolution. Founded on the premise that collecting and disseminating reliable information about court ADR can raise the quality of court ADR, RSI has assisted state and federal courts with the design, administration, monitoring and evaluation of mediation programs, as well as training mediators. Courts and individuals across the country call on RSI for advice and make use of CourtADR.org, RSI's Court ADR Resource Center. With a multi-year grant from the Office of Illinois Attorney General Lisa M. Madigan that supported this evaluation and the programs it studied, RSI has fully implemented the advice the organization has developed over the course of two decades: Seek stakeholder input. Set goals. Design clear systems. Train skilled mediators. Collect uniform data. Share information with stakeholders. Assess programs with an expert eye. Never stop working to improve court ADR programs.

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