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September 2013THE

DOCKETVol.20, No.9 The Official Publication of the Lake County Bar Association

Fall Luncheon Series

ARDC Update

WednesdayNovember 20

Greenbelt Cultural Center12:00

2013 Updates

James J. Grogan

1 hour Ethics CLE

Pro Bono Awards

WednesdaySeptember 25Waukegan City Hall

12:00

Wayne Flanigan AwardBartlett J. Carroll, Jr.

Volunteer Lawyer AwardRobert O. AckleyWilliam Y. FranksStephen P. Rice

State of theJudicial System

WednesdayOctober 23

Greenbelt Cultural Center12:00

Chief Judge Fred Foreman

Public Defender Joy Gossman

State’s Attorney Michael Nerheim

Clerk Keith Brin

Each Lunch Only

$15

Inside this issue...

A publication of the

300 Grand Avenue, Suite AWaukegan, Illinois 60085Phone: (847) 244-3143Fax: (847) [email protected]

2013-2014 Officers & DirectorsSteven P. McCollum, PresidentKeith C. Grant, First Vice-PresidentMichael J. Ori, Second Vice-PresidentMichael J. Conway, TreasurerJennifer J. Howe, SecretaryMarjorie I. Sher, Immediate Past PresidentHon. Daniel B. ShanesDonald J. MorrisonCarey J. SchieverBrian J. LewisGary L. SchlesingerStephen .J Rice

Docket CommitteeMichael S. Strauss, Co-editorDaniel L. Jasica, Co-editorJeffrey A. BermanAnn Buche ConroyHon. Michael J. FuszDeborah L. GoldbergRachel C. He ymanHon. Charles D. JohnsonDaniel Sean Patrick LacyKevin K. McCormickHon. Raymond J. McKoskiTara H. OriTracy M. PoulakidasStephen J. RiceNeal A. SimonHon. James K. SimonianRebecca J. Whitcombe

StaffChristopher T. Boadt, Executive DirectorVirginia M. Elliott, Assistant Director

Meeting Minutes: July 2013by Keith Grant26

Midsummer Dreamersby Chief Judge Fred Foreman5

In the Director’s Chair: Celebrate Our Volunteersby Christopher T. Boadt2

Grapevine28

The President’s Page: The Panopticon Societyby Steven McCollum3

FINRA Reminds Firms of Their Duties: Relating to Real EstateInvestment Programsby James J. Eccleston

7

Bifurcation of Divorce Casesby Mark Schondorf15

Building Camaraderie: Exploring Strategic Directionby Carlton R. Marcyan32

Donald T. Morrison (1928 - 2013)A Trial Lawyer, A Man of Action and a Man of Loveby Donald J. Morrison

11

Fit to be Tried: What Every Criminal Lawyer Should Know About Mentally Ill Defendantsby Kevin Berrill

20

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2 The Docket Septebmer 2013

Throughout the year many LCBA members donate theirvaluable time to many worthy causes. Some are LCBA-related activities such as the Volunteer Lawyer Program,

Foreclosure Helpdesk, and Guardianship Helpdesk. Other activ-ities support other important community activities such as serv-ing on non-profit boards, helping in food pantries, andmentoring young people in programs such as Teen Court andYouthBuild, just to name a few.

Every year the Lake County Bar Association Community Out-reach Committee and Prairie State Legal Services work togetherto highlight the exceptional talents of a few volunteers as a rep-resentation of the group as a whole.

The Wayne B. Flanigan Award is presented to an LCBA mem-ber in recognition of his or her extraordinary contributions thatsupport the delivery of free legal services to indigent members ofthe Lake County community– in the same spirit as former LCBAPresident Wayne Flanigan. This year’s recipient is:

Bartlett James (B.J.) Carroll, Jr.

The Volunteer Lawyers Program Awards are presented inrecognition of exemplary support to providing legal services toindigent residents of Lake County through Prairie State LegalServices. This year’s recipients are:

Robert O. AckleyWilliam Y. FranksStephen J. Rice

Please join us for the Pro Bono Awards Luncheon atWaukegan City Hall on Wednesday, September 24 at noon.The cost of the lunch is only $15.

If you are interested in joining these valuable volunteers servingas part of the Volunteer Lawyers Program, please contact SusanPerlman at [email protected] or 847-662-6925.

To place an ad or for information onadvertising rates, call (847) 244-3143. Submission deadline: first dayof month preceding the month ofpublication. All submissions must bemade in electronic format (high reso-lution PDF or JPG format at a resolu-tion of 300 pixels per inch or more.)See www.lakebar.org/html/docke-tRates.asp.

The Docket is the official publication ofthe Lake County Bar Association, 300Grand Avenue, Suite A, Waukegan,Illinois 60085 (847) 244-3143, andis published monthly. Subscriptionsfor non-members are $45.00 per year.

Reproduction in whole or part with-out permission is prohibited. The opin-ions and positions stated in signedmaterial are those of the authors andnot necessarily those of the Associa-tion or its members.

All submitted manuscripts are consid-ered by the Editorial Board. All lettersto the editor and articles are subject toediting. Publications of advertise-ments is not to be considered as an en-dorsement of any product or serviceadvertised unless otherwise stated.

In theDirector’s Chair

byChristopher T. Boadt

Celebrate Our Volunteers

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Septebmer 2013 The Docket 3

ThePresident’s Page

bySteven McCollum

Last month, Chief Judge Foremanwrote in his Chief Judge’s Pageabout our right to privacy and the

Third Amendment to the U.S. Constitu-tion. Like Judge Foreman, I am certainlynot anti-police, having been a prosecutorin two State’s Attorney’s offices for 16years. But recent events prompt me to joinJudge Foreman in bringing up the issuesof security, safety, privacy, and the rightswe have as U.S. citizens, which matter tous not only as citizens but also as attor-neys.

When the Boston Marathon bombings oc-curred this year, we saw an unprece-dented display of police and governmentforce exerted to kill and capture twoChechen bombers. The police had goodreason to be concerned and an outragedpublic demanded action. The police actedout of good motives and did a great job ofcapturing the perpetrators of a horriblecrime.

During this process, the government is-sued a “shelter-in-place” directive to theentire city of Boston and some suburbs.Over a million people were directed to stayin their homes. The police patrolled thestreets and detained the few people whowere out. No legal basis was given for thisorder and relatively few people even ques-tioned it. Previously, shelter-in-place or-ders had been used in instances ofchemical spills and other physical hazardsin limited, localized situations. This wasthe first such order to be applied to somany people or such a large geographicarea.

Police in the Boston suburb of Watertownconducted house-to-house searches. Mul-

tiple SWAT teams, armed with assault ri-fles, entered the homes of residents. Themembers of those SWAT teams pointedtheir weapons at ordinary people, orderedthem to place their hands on their heads,removed them at gunpoint from theirhomes, and detained them while theyconducted searches of their homes with-out any warrant. These people had obeyedthe shelter-in-place order. (An example isat: http://www.youtube.com/watch?v=2LrbsUVSVl8&feature=player_embed-ded.)

None of the people pulled out of theirhomes had anything to do with the bomb-ings nor did the police have any reason tobelieve that they might be involved withor sheltering the bombers. But while thereare many videos on YouTube and othersites showing what happened, I haven’tseen a single one onthe nightly news.Apparently none ofour leaders feel thatthings went too far.It would be myguess that we canexpect more of thesame in the future.

More recently wehave seen the caseof Edward Snowdensplashed over themedia. Some believehe is a whistleblow-ing patriot; othersbelieve he is a trai-tor. The internaldocuments Snow-den sent to themedia didn’t con-

cern any list of our agents or specific op-erations. They concerned the nature andscope of the surveillance programs usedby the NSA. One program, named PRISM,allows the NSA to have virtually unfet-tered access to the internet servers ofGoogle, Facebook, Apple, Microsoft,Yahoo, Skype, and others. According toCNN’s website, the other NSA program,XKeyscore, “makes available everythingyou’ve ever done on the Internet —browsing history, searches, content ofyour emails, online chats, even your meta-data — all at the tap of the keyboard.”

Whether you believe Snowden is a crimi-nal, a patriot, or somewhere in between,you can no longer cling to the idea thatyou have any real privacy in any activityon a phone or a computer connected tothe Internet. The NSA programs have

The Panopticon Society

Attorneys

WelcomeNew LCBA Members

Elizabeth SammannCASA Lake County

Robert S. KipnisGrund & Leavitt P.C.

Elizabeth Howlett Bogie19th Judicial Circuit Court

Ellen Beth GillLaw Offices of Ellen Beth Gill

Richard J SormanSorman & Frankel Ltd.

Thomas FlanninganLaw Offices of Thomas Flanningan

AssociatesBrenda Maday

Student

4 The Docket September 2013

been defended by Republican and Demo-cratic leaders alike, while there have beena few opponents from the right and the leftwho, for their own differing reasons, dis-trust the government. As a lawyer, myconcerns are focused on the Constitution,the Bill of Rights, and how little they seemto matter to those who care more aboutfeeling secure than being free from gov-ernment intrusion. We are being led to be-lieve that we must give up the veryfreedoms we cherish to feel safe.

When I consider the number of cameraswe live with (at traffic lights, in stores, thecourthouse, and most public places), thesearches we undergo when we enter apublic building or airport, and the sur-veillance revealed by Snowden’s revela-tions, I am reminded of 18th centuryphilosopher Jeremy Bentham’s Panopticon.The Panopticon was Bentham’s idea for aprison designed so that the inmates never

saw their jailers, and could never be sureif they were being watched. Bentham be-lieved that prisoners who felt that theywere always being watched could be man-aged much more easily and with fewerguards and resources. You don’t have toactually watch the prisoners; they justhave to have the sense that they are beingwatched and they will behave.

Increasingly, our American society is be-coming one very big panopticon. We allknow that there are cameras watching.We all know that the government, if itwishes, can look at our activities on theInternet or listen to our phone conversa-tions. Under the 4th Amendment, allsearches are reasonable, apparently justbecause they are deemed to be necessaryfor national security.

Since that horrible day on September 11,2001, we have all hoped that our govern-ment will keep us safe from the terrorists

who plague our modern society. It is a dif-ficult thing to do. The truth is that a de-termined zealot, who cares nothing abouthuman life, including his own, can killmany innocent people. No government,no police force, no security system, can re-ally protect us. Despite this we have spentan enormous amount of money and for-feited our freedom of movement and ourprivacy in a desperate attempt to forestallthe next attack.

There is no doubt that the American peo-ple don’t seem that concerned about theloss of privacy or freedom that is occur-ring (unless they see it happening tothemselves). But as lawyers we are oftenasked what our opinion is when issues likethis come up in conversation. My answeris that the Constitution and the Bill ofRights define us as a country and this willnot be the same America if they no longermatter.

Do you have a speaker idea or suggestion for our business meetings?

We would love to hear from you! Just send a note to: Chris Boadt ([email protected])

One of the best opportunities of-fered to me early in my legal ca-reer was to serve as an intern in

the Lake County Public Defender’s Office.I was in my third year of law school atJohn Marshall. George Pease was the Pub-lic Defender and his one full-time assistantwas Mike Boyd. The contract attorneyswere Jim DeSanto, Bob Hauser, Bill Block,and Tom Hannigan. With my 711 licensein hand, I spent a great amount of time incourt and developed solid trial skills fromthese talented lawyers. I decided that sum-mer that Lake County was where I wantedto practice law upon graduation.

This year was again a banner year for the19th Judicial Circuit’s Intern Program.Under the direction of Judges Margaret J.Mullen and Diane E. Winter and the day-to-day supervision by Senior Staff Attor-ney Norm Werth and colleagues AlexZagor, Elizabeth Olson, and ElizabethHowlett, the following law students par-ticipated in this year’s class:

• Randall T. Manoyan - Chicago-KentSchool of Law

• Mitchell Paglia - Loyola-Chicago Schoolof Law

• Tyler Peacock - University of MichiganSchool of Law

• Sylvia Zarski - DePaul University Schoolof Law

• Alexis Aranda - Northern IllinoisSchool of Law

• Thomas Goodwyn - Loyola-ChicagoSchool of Law

Jack Linn, Northwestern UniversitySchool of Law, worked as an intern in theLake County Public Defender’s Office. Thefollowing undergraduates spent the sum-mer as interns in Adult and Juvenile Pro-bation:

• Rachel Perkowitz - University ofDubuque

• Craig Brenner - University of Wisconsin

• Andrew Yopp - Western Illinois Univer-sity

• Alejandro Gua-jardo - Univer-sity ofWisconsin

• Heather Wiener- Illinois StateUniversity

• Natalie Tracey -Western IllinoisUniversity

Our Circuit CourtClerk Keith Brinhosted 8 college in-terns and State’sAttorney MichaelNerheim had 18law school and un-dergraduates ro-tating through thedifferent divisions

in offices.

One interesting topic of conversation thatcame up during this summer was thecourt’s decision in Glatt v. Fox SearchlightPictures, Inc., 2013 WL 2495140(S.D.N.Y 2013). The court reviewed thestatus of unpaid internships in the privatesector under the Fair Labor Standards Act(FLSA). In this case, the use of unpaid, pri-vate sector internships was challenged byformer interns seeking back wages underthe FLSA. The interns worked in the filmindustry or on movie production crews.The court ruled that the interns were

September 2013 The Docket 5

Midsummer Dreamers

TheChief Judge’s Page

byChief Judge Fred Foreman

THANKYOU!

To volunteer, please contact Susan Perlmanat [email protected] or 847-662-6925.

Ann ConroyKathleen CurtinDavid GanfieldLillian GonzalezThad GruchotMichael StraussDouglas Zeit

The following attorneys have accepted Pro Bono cases through

Prairie State Legal Services.

“employees” under the “Fact Sheet” is-sued by the U.S. Department of Labor andthat minimum wage and overtime provi-sions applied to the interns.

The U.S. Department of Labor Fact Sheetapplies only to private sector internships.The FLSA makes an exception under cir-cumstances for individuals who “volun-teer” for a state or local governmentagency or for religious, charitable, civic orhumanitarian purposes on behalf of non-profit organizations. Such internshipscurrently are permissible. In particular,judicial interns were found to be “volun-teers” motivated by the desire to obtainpersonal edification and legal experience

with no promise or expectation of mone-tary compensation. Todaro v. Twp. OfUnion, 40 F. Supp. 2d 226 (D.N.J. 1999).1

In late July, I had the occasion to meetwith our judicial interns to discuss theirexperiences this summer. They all agreedthat our judges took the time to discusstheir research and written memos withthem. Also, in many of the Law and Crim-inal Division Courtrooms, the internswatched the proceedings and attorneysand were called up to find the “one bestcase” to assist the judge in making a rul-ing. The students particularly enjoyedtheir time in Chancery and Probate Courtbecause of the complexity of the issues

and the impact the judges’ rulings hadupon the litigants.

Although downtown Waukegan may nothave the allure of LaSalle Street or theSouthern District of New York in Man-hattan, all of our interns enjoyed theirsummer and many will return to schoolthis fall with the dream of someday prac-ticing law here or working in the LakeCounty Courthouse.

Thanks again to our judges and staff at-torneys, Public Defender, Juvenile andAdult Probation, our Circuit Clerk, andState’s Attorney, for their contributions tothe success of these annual internships.


i Thanks to Norm Werth for his excellent memorandum regarding the issue of private and public internships! See also the August 2013 article “Will Unpaid In-terns Become History?” by Howard L. Morcerf of Duane Morris, published in the Chicago Lawyer at page 42.

September 25, 2013

4:00 – 6:00 p.m.

1.5 CLE Credit (FREE)

LCBA Office

300 Grand Avenue, Suite A, Waukegan

RSVP to [email protected]

or (847) 244-3143

GUARDIANSHIP HELP DESK TRAININGVolunteer Attorneys and Legal Support Staff neededfor Guardianship Help Desk at Park City Courthouse

The Help Desk operates on Friday mornings from

8:30 a.m. to 12:00 p.m., in the conference room ad-

jacent to the Probate Court, located in the Park City

Branch Court (301 S. Greenleaf Avenue, Park City,

60085). The Help Desk is staffed by volunteer attor-

neys and non-attorney members of the Lake County

Bar Association.

The program relies heavily on the cooperative efforts

of attorney and associate members of the LCBA, the

staff of the Clerk of the Court, the office of the Sher-

iff, the office of the Court Administrator, and the

Probate Court Judge. Together, these parties assist

petitioners through the process with courtesy and

efficiency.

No prior experience in the area of Probate is re-

quired. Volunteers are encouraged to attend one of

the formal Guardianship Help Desk training sessions.


In May, 2013, the Financial IndustryRegulatory Authority, Inc. (“FINRA”)issued Regulatory Notice 13-18 to re-

mind financial services firms of their du-ties related to unlisted real estateinvestment trusts (REITs) and unlisted di-

rect participa-tion programs(DPPs) thatinvest in realestate. Inthose invest-ment pro-g r a m s ,investors buyan equity in-terest in apool of realestate assets,i n c l u d i n gland, officebuildings, ho-

tels and shopping centers, or in mortgagessecured by real estate.

FINRA outlines the general duties appli-cable to all communications with the pub-lic. Pursuant to FINRA Rule 2210, allcommunications must be “fair, balancedand not misleading.” FINRA became con-cerned that investors are not adequatelyprotected, noting that its reviews of firms“have revealed deficiencies.” Accordingly,FINRA issued notice 13-18 to remindfirms of their current and important obli-gations. Let’s highlight the obligations setforth in the notice.

First, FINRA reminds firms that all de-

scriptions of real estate programs must“accurately and fairly explain how theproducts operate.” Moreover, firms mustensure that all descriptions of real estateprograms must be consistent, includingbeing consistent with any disclosures inthe program’s prospectus. Regarding riskdisclosures, FINRA reminds firms of sev-eral important obligations. Among them,firms must “balance any presentation ofthe potential benefits of such investmentswith disclosure concerning potentialrisks.” This disclosure, moreover, must be“clear and prominent,” “commensuratewith the discussion of benefits,” and “notrelegated to a footnote.” Critically, FINRAreminds firms that, “Providing risk disclo-sure in a separate document, such as theprospectus, does not substitute for the re-quired disclosure, even if a communica-tion is accompanied or is preceded by aprospectus.”

Second, FINRA focuses on communica-tions with regard to real estate programdistribution rates. FINRA warns thatsome programs may not make a distribu-tion from cash flows from operations. In-stead, the distribution may come from thereturn of the investors’ own principal thatthey have invested. Or the distributionmay come from a loan that the programhas taken out. Whatever the case, FINRAwarns firms that it must communicate ac-curately. Examples include not misrepre-senting the amount or composition of aprogram’s distribution, not stating or im-plying that a distribution rate is a

“yield,”or “current yield,” or equating thereal estate program to a fixed income in-vestment like a bond or a note.

Further, FINRA outlines what firms mustdisclose clearly and prominently so as tocomply with Rule 2210:

• Distribution payments are not guaran-teed and may be modified at the pro-gram’s discretion;

• Exact composition of each distributionto disclose how much of it is return ofprincipal, borrowings, and cash flowfrom investment or operations;

• The time period during which the dis-tributions have been funded from re-turn of principal, borrowings or anysources other than cash flow from in-vestment or operations;

• A warning that if the distribution in-cludes a return of principal, then theprogram will have less money to investand may experience lower overall re-turns; and

• A warning that if the distribution in-cludes borrowed funds, then the distri-bution rate may not be sustainable.

Third, FINRA addresses what it calls “sta-bility/volatility claims.” FINRA cites fac-tors affecting stability and volatility,including fluctuating prices, uncertaintyof dividends, and rates of return. Then itdelivers this very powerful warning re-garding communications discussing par

FINRA Reminds Firms of Their DutiesRelating to Real Estate Investment Programs

By

James J.Eccleston

8 The Docket Septebmer 2013

value: “The fact that a program offers itssecurities at par value, or at another rela-tively stable price, does not evidence sta-bility in the value of the underlyingassets.” FINRA reminds firms that theircommunications cannot state otherwise,because “price stability does not indicatestability in the value of the underlying as-sets, which will fluctuate and may beworth less than the real estate programinitially paid, and that the investor maynot be able to sell the investment.”

Fourth, FINRA cautions firms that its

communications must describe all of therestrictions and limitations associatedwith a program’s redemption features andliquidity events. Regarding redemptions,FINRA instructs firms to communicateclearly and prominently, for example, ifmanagement may terminate or modifythe ability to redeem. Similarly, communi-cations should include a warning if not allredemption requests in the past have beensatisfied. Regarding liquidity events,FINRA advises that there must be a warn-ing communicated if any liquidity event isnot guaranteed, or if liquidation features

may be changed inthe discretion ofmanagement.

Fifth and finally,FINRA remindsfirms of their obli-gations in commu-nicating theperformance ofprior related real es-tate programs, aswell as the use of in-dices and compar-isons. The warningsto firms are detailed

and sometimes technical. However, aswith all communications, the essence ofeach warning is that the communicationmust be fair, balanced, and not mislead-ing.

As one can see, firms’ obligations regard-ing communications relating to real estateinvestment programs are highly regu-lated. Given that FINRA has noted defi-ciencies, let’s hope that, moving forward,the firms’ communications will catch upto the firms’ obligations.

James J. Eccleston leads the Securities groupat the Chicago law firm of Shaheen, Novosel-sky, Staat, Filipowski & Eccleston, P.C., wherehe represents investors in recovering invest-ment losses and financial services profession-als in disciplinary, employment, andcompliance matters. He has held numeroussecurities licenses and Chicago Bar Associa-tion leadership positions and serves as an ar-bitrator and mediator. He is a recipient ofMartindale-Hubbell’s highest rating (AV) forlegal ability and ethics and is named to the Illi-nois Super Lawyer and Leading Lawyer [email protected], 312.621.4400,www.snsfe-law.com, www.financialcoun-sel.com.

SAVE THE DATE


Membership Luncheon Series

You Spoke, We Listened!New Lower Price

Lunch: 12:00 noonMeeting and Guest Speaker: 12:15–1:15 p.m.

Registration

September 25, 2013 October 23, 2013 November 20, 2013

Name: ______________________________________________ ARDC#: ___________________________________________

Firm: ______________________________________________________________________________________________________

Address: ____________________________________________ City, State & Zip: ______________________________________

Phone: _____________________________________________ Fax: ________________________________________________

E-mail: ____________________________________________________________________________________________________

Payment method: o Credit Card on File o Visa oMastercard o Discover oAmerican Express

Card #: _________________________________________ Expiration Date: ____/____/____ CCV: ______________

Signature: _________________________________________________________________________________________________

PLEASE RETURN REGISTRATION TO:Lake County Bar Association • 300 Grand Avenue, Ste A • Waukegan, IL 60085 • TEL (847) 244-3143 • FAX (847) 244-8259

Luncheon Fee

September 25: Pro Bono Awards _____ $15 (pd by 9/20) _____ $20 (pd after 9/20)

October 23: Membership Meeting _____ $15 (pd by 10/18) _____ $20 (pd after 10/18)

November 20: ARDC Update _____ $15 (pd by 11/15) _____ $20 (pd after 11/15)

Cancellations gladly accepted through the Friday prior to each luncheon. Non-Member rate is double.

Pro Bono AwardsWaukegan City Council Chambers100 N. Marting Luther King Jr. Ave. • Waukegan

Serving Potbelly Sandwiches & Salad

Celebrate those who gave manyhours throughout the year

Co-Sponsored by the Community Outreach Committee

State of the Judicial System

Greenbelt Cultural Center1215 Green Bay Road

North Chicago

Serving Jimano’s Pizza & Salad

James J. GroganGreenbelt Cultural Center

1215 Green Bay Road • North Chicago

Serving Brown’s Chicken & Sides

ARDC Update1 hr. Professionalism CLE

Co-Sponsored by the Professionalism & Office Management Committee

2013 Pro Bono Award WinnersVolunteer Lawyer Award

Robert O. AckleyWilliam Y. FranksStephen P. Rice

Wayne Flanigan Award

Bartlett J. Carroll Jr.

Thursday, September 12, 20134:30 – 6:00 p.m.

Meet the Judges

Thursday, October 24, 20134:30-6:00 p.m.

Meet Prairie State Legal Services

Thursday, November 14. 20134:30-6:00 p.m.

Meet

Lake County State’s Attorney

Michael Nerhiem

&

Lake County Public Defender

Joy Gossman

At the LCBA Office • RSVP to [email protected] or (847) 244-3143

Free Member ReceptionEnjoy a FREE glass of wine while enjoying

the company of your fellow members


I’ll never forget the first jury trial I triedwith my Dad. It was the summer of1999. I had just left the State’s Attor-

ney’s Office. The trial was at the DaleyCenter in Chicago.

On the morn-ing of trial, Ipacked my carfull of ourtrial exhibitsand went to

pick up Dad at 8:00 a.m. He was wearingan old ratty sport coat with patches on thesleeves, large framed coke bottle glasses, atie with a huge mustard stain on it, andold worn-out shoes. His hair was slightlydisheveled and he was carrying a decrepitbriefcase from the 1960’s. I said “Dad,what on earth are you wearing? We areon trial!” “Oh don’t worry,” Dad said.

He then started frying up some bacon andeggs for breakfast. I said, “Dad what areyou doing? We have to be at the DaleyCenter in an hour!” “They’ll wait for us,son” Dad replied.

We arrived at the courthouse at 10:05a.m. He shuffled clumsily into the court-room and introduced me to the young in-surance defense attorney, saying “Sorrywe’re so late. I’m just an old countrylawyer. It’s hard for old farts like me to findthese big fancy courtrooms in the city.” Iwatched as the defense attorneys snick-ered and whispered to the clerk and courtreporter about how they were going toslaughter this poor old man and his sonwho was trying his first civil jury trial.

I handled jury selection, as it was hard forDad to hear the jurors. Then came open-ing statements, and when Dad stood up tobegin speaking, it was as if a switch wentoff in his head. His presence was magnif-icent. He was electrifying. The jury waseating out of the palm of his hand. By thetime he sat down, the jury looked at uswith an expression like, “How muchmoney can we give you?”

After a two weektrial, the jury re-turned a verdictawarding ourclient $4.75 mil-lion dollars. Theoffer was$250,000. Notbad for an oldcountry lawyer.

I’ll also never for-get the last trial Itried with myDad, in 2004. Itwas a medicalmalpractice casein front of JudgeJohn Goshgar-ian. One of thedefendants wasrepresented by MikeHenrick and StaceySeneczko of Hinshawand Culbertson.

We were arguing animportant motion inlimine filed by the Hin-shaw firm. Stacey ar-gued the motion,under the watchfuleye of Mr. Henrick.When it becameDad’s turn to argue,he began to speak,and may have slightly exaggerated a fewof the facts. Stacey interrupted him, stat-ing, “Judge, that’s just not true!” Dad tooka full step backward, put his right hand onhis chest, looked at Stacey, looked back atthe Judge and proclaimed, in his loudbooming voice, “Your Honor, it’s impossi-ble to speak over a chatty woman!!”

I thought Stacey was going to kill him.Henrick was literally holding her back.Judge Goshgarian almost fell off his chair.

On May 20, 2013, surrounded by hiswife, children, and grandchildren, Donald

T. Morrison passedaway peacefully athome in his sleep.The Lake Countylegal community losta pillar, a giant, andone of the finest triallawyers to ever stepfoot in the Lake Countycourthouse.

Donald T. Morrisonbegan his brilliant legalcareer in 1949 as a lawstudent at NorthwesternUniversity. His legal train-

ing was interrupted by service in theUnited States Navy from 1951 to 1954,where he served as a combat line officeron an AKA-54 in the Pacific during theKorean War. His passion for the law wasevident even in his Navy days where he at-tended the U.S. Navy School of MilitaryJustice and served as court martial coun-sel. After his service in the Navy, he re-turned to Northwestern where heobtained his law degree. He was admittedto practice law in Illinois in 1955.

He was offered and accepted a job as a

Donald T. Morrison (1928 - 2013)

A Trial Lawyer, A Man of Action and a Man of Love

By

Donald J.Morrison

trial lawyer with the litigation firm Mor-gan, Halligan & Lanoff in Chicago. It wasthere that he learned the art and skill ofbeing a successful civil litigator and triallawyer. He blossomed into a pioneer ofcivil litigation and trial practice in theState of Illinois. His civil litigation practicemigrated to Lake County in 1961 whenhe opened his own practice in Waukegan,the birth of the law firm now known asMorrison & Morrison, P.C.

After moving to Lake County, Donald T.Morrison established himself as a leadingtrial attorney in numerous areas of civillitigation. He served as an Assistant At-torney General for condemnation casesfrom 1961 to 1968. After that, he repre-sented countless governmental agencies,including, most notably, the Lake CountyForest Preserve District, the WaukeganPort District, dozens of municipalities, aswell as landowners, in eminent domaincases throughout the MetropolitanChicago Area. He served as chairman ofthe Eminent Domain Committee of the lit-igation section of the American Bar Asso-ciation. He authored several authoritativearticles and texts in the eminent domainarena, and lectured extensively as an em-

inent domain expert throughout the Stateof Illinois. Quite simply, he was consideredone of the most influential attorneys onIllinois eminent domain law in the historyof the State of Illinois.

He also became quite a leader in the per-sonal injury arena, particularly in theareas of medical malpractice and productliability practice. He handled countlesscases on the plaintiff ’s side, obtainingmulti-million dollar settlements and ver-dicts, while at the same time successfullydefending American International Hospi-tal (now known as Midwestern RegionalMedical Center in Zion) in medical mal-practice cases. He authored numerous ar-ticles and book chapters in the area ofmedical malpractice and product liability,and lectured extensively as an expert inthese fields as well.

His trial expertise also included the areasof corporate and business litigation, landuse and zoning, municipal law, construc-tion litigation, legal malpractice, and ex-tensive appellate court work.

In 1977, he was elected Fellow of theprestigious American College of Trial

Lawyers. That same year, he served asPresident of the Lake County Bar Associ-ation. He was instrumental in establish-ing the first Bar Association office andhiring its first secretary, Jan Zobis. He wasactive in the Lake County Bar Associationduring his entire legal career, especiallythe Gridiron and the golf outings. In2007, he received the Lake County BarAssociation President’s Award for Profes-sional Excellence.

Before the obvious pattern of nepotismreared its ugly head at the Morrison firm,a handful of brave young associates whodid not have Morrison as their last name


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trained as trial attorneys under the tute-lage of Donald T. Morrison. Dad was par-ticularly proud of his four associates whowent on to become distinguished judges inLake County: Terry Brady, Skip Tonigan,Kip Starck and Ray Collins.

He was a trial attorney for more than 50years. Recently, Joe, Margaret and I com-piled a book of published Illinois AppellateCourt and Supreme Court opinions wherehe was the lead trial counsel as well as thelead appellate counsel. There were 98 ofthese published cases. Trying to determinehow many jury trials he tried is a muchmore difficult task. Suffice it to say that hetried several hundred jury trials to verdict.

What was it that made him such a suc-cessful trial attorney? Without question, itwas zealous and competent representa-tion of his clients. That always startedwith rigorous and time consuming prepa-ration. Whether it was a complex medicalissue, a complicated engineering issue, ora multi-tiered real estate appraisal analy-sis, by the time the case was called for trial,he knew more about that issue than any-one else in the courtroom, including theexperts.

When the trial started, he was a master ofthe rules of evidence and he had a mag-nificent courtroom presence. He calledthe tune in the courtroom. And after thejury returned its verdict, win or lose, hisclients always knew that they got the ab-solute best representation. In all cases, hemade life a little easier for his clients. Inmany cases, his clients told him that theirlives are now worth living again.

Perhaps the most amazing aspect of hislegal career was how he balanced his per-sonal life, his family life and his civic andchurch duties with his successful career.He held countless leadership positions inthe community, Knights of Columbus,and church. In 1975, tragedy struck andhe lost his first wife, my mom, to cancer,at a time when he had eight childrenranging in ages from 17 years of age to 6years of age (including six teenage andpre-teen daughters). Somehow, with thehelp and grace of God, he managed tostay on top of the legal profession, whileat the same time dealing with the daily tri-als and tribulations of singlehandedlyraising eight children.

He truly valued the importance of educa-tion. He paid for 96 years of privatecatholic elementary and high school forhis eight children. Between his eight chil-dren and 2 step-children, he paid for 54years of college and post-graduate educa-tion.

Later in his career, in 2000, doctors toldhim he had Stage 4 kidney cancer andgave him five years to live. While he wasbattling his illness, his friends and col-leagues would often call the firm after hereceived a tough round of chemo therapyand ask how he was doing. We never hadto answer that question. We merely for-warded the call to our law library, wherehe was knee deep in legal and medical re-search to help prepare his law partners fortheir upcoming trials. He worked hardeven while battling cancer and dealingwith chemotherapy because he loved thepractice of law. It was his passion. He wasa trial lawyer.

When he was not being a lawyer, he was aself-proclaimed “Man of Action”. He en-joyed flying his airplanes, scuba divingwith sharks, muskie fishing, marlin fish-ing, golfing, playing the piano, and cook-

ing. He was always the life of the party.

But from his children’s perspective, he wasa “Man of love.” He forged unique andspecial relationships with his wife, each ofhis children, and each of his twenty-onegrandchildren. He was fiercely loyal to allof us.

Last year, our family dealt with the un-speakable tragedy of the loss of his grand-son, Tony Borcia, at the age of 10. Despitehis deteriorating physical condition, hewas a pillar for his daughter, Margaret andthe rest of us, proclaiming the words thatcontinue to guide us: “Be there for eachother”; and “Love never dies.”

He was my father, teacher, spiritual leader,law partner, pilot, fishing buddy, golfingpartner, scuba buddy, and my best friend.To say he loved and was loved beyondwords is an understatement. To say he willbe missed beyond measure is accurate.

As my brother Joe said at his funeral, hewas, quite simply, the greatest man I haveever met in my life.


All divorce cases resolve by the entryof a Judgment for Dissolution, ei-ther without contest, by agree-

ment, or after a trial. Generally, thejudgment dissolving the marriage is en-

tered at thesame time asorders regard-ing child sup-p o r t ,maintenance,and divisionof property.Many of theseorders are theresult of pro-tracted litiga-tion over aperiod ofyears before a

final judgment or settlement is reached.There are times when the family law prac-titioner will encounter a situation where adivorce should or must be bifurcated. Bi-furcation occurs in the divorce contextwhen a judgment of dissolution is enteredbefore issues of property, maintenance,support, custody, or other issues are de-cided. This article discusses the statutoryorigin and the case law of bifurcation, andanalyzes the cases that interpret thestatutes and define the context in whichbifurcation has been allowed or denied.

Statutory OriginTwo statutes address the separate natureof grounds for dissolution and issues ofcustody, maintenance and property.

The first is found in Section 401 of the Illi-nois Marriage and Dissolution of MarriageAct (“IMDMA”).

(b) Judgment shall not be entered un-less, to the extent it has jurisdiction todo so, the court has considered, ap-proved, reserved or made provision for

child custody, the support of any childof the marriage entitled to support,the maintenance of either spouse andthe disposition of property. The courtmay enter a judgment for dissolutionthat reserves any of these issues eitherupon (i) agreement of the parties, or(ii) motion of either party and a find-ing by the court that appropriate cir-cumstances exist. 750 ILCS 5/401(b)(West 2013).

Section 403 (e) of the IMDMA referencesbifurcation and states:

Contested trials shall be on a bifur-cated basis with the grounds beingtried first. Upon the court determiningthat the grounds exist, the court mayallow additional time for the parties tosettle amicably the remaining issuesbefore resuming the trial, or may pro-ceed immediately to trial on the re-maining issues. In cases where thegrounds are uncontested and provedas in cases of default, the trial on allother remaining issues shall proceedimmediately, if so ordered by the courtor if the parties so stipulate, issue onthe pleadings notwithstanding. 750ILCS 5/403(e).

Section 403 is fundamentally differentfrom Section 401 in that it only addressesthe procedural order of contested trials.Section 403 does not deal with bifurcatedjudgments for dissolution, and thereforethe same myriad of issues does not arise.

Requirement of “Appropriate Circumstances”A presumption exists against bifurcation.“Sound policy reasons militate against aninterpretation of section 401[(a)] thatgives a trial judge unfettered discretion tobifurcate a judgment of dissolution.”1

Absent appropriate circumstances “thecourt is without authority to enter a judg-ment of dissolution unless the court haseither ‘approved’ an agreement betweenthe parties as to these matters, or ‘consid-ered’ them to the extent it could refuse tomake any award if such a result is justifiedor has made an allotment as the facts re-quire.”2 The number of appropriate cir-cumstances for bifurcation is “limited.”3

The Cohn CaseThe seminal case on the issue is In re Mar-riage of Cohn.4 In Cohn, the wife filed a pe-tition for dissolution on the grounds ofmental cruelty, which was granted in anuncontested hearing. No written judg-ment was entered. The issues of propertydisposition, custody, and maintenancewere entered and continued to a later dateupon agreement of the parties or noticefor entry of judgment. The husband laterfiled a motion to have the Judgment of Dis-solution entered, and the wife objected.The court granted the motion and enteredthe Judgment. The wife appealed on thegrounds the court had no authority toenter a judgment of dissolution withoutdetermining custody and property rights.5

Referencing the Uniform Marriage and Di-vorce Act, the Illinois Supreme Courtfound that a bifurcation is allowed as longas the court has “considered, approved, re-served or made provision” for child cus-tody, support, maintenance, and/orproperty.6 The court further stated thatcourts do not have an unfettered ability tobifurcate divorces, and that Section 401 ofthe IMDMA requires a finding of “appro-priate circumstances” before the trialcourt can bifurcate a dissolution action.7

The court cited examples of such “appro-priate circumstances” for bifurcation, in-cluding when the court does not havepersonal jurisdiction over the respondent,

Bifurcation of Divorce Cases

By

MarkSchondorf

1 In re Marriage of Blount, 197 Ill.App.3d 816, 817 (2nd Dist. 1990).2 In re Marriage of Bogan, 116 Ill.2d 72, 77 (1986) (citing In re Marriage of Cohn, 94 Ill.App.3d 732, 740 (1981) aff ’d, 93 Ill. 2d 190 (1982)).3 Bogan, 116 Ill.2d at 77.4 In re Marriage of Cohn, 93 Ill.2d 190 (1982).5 Id. at 195-96.6 Id. at 196.7 Id. at 197.


where a party is unable to pay child sup-port or maintenance if so ordered, wherethe court has set aside an adequate fundfor child support, or where the children donot reside with either parent. The Cohncourt specifically stated that this is not anexhaustive list, and that there are othercircumstances which may be appropriatefor bifurcation.8

The supreme court in Cohn overturned thetrial court’s ruling on the grounds thatthere was no indication in the record thatthe court considered the need to reservedisposition of the collateral issues.

Examples of Appropriate Circumstances for BifurcationThe court in In re Marriage of Schweihs,9 al-lowed bifurcation and reserved all issuesexcept temporary child support and the

disposition of marital assets. The husbandstated that he had no assets, no bank ac-count, and no employment; the wife didnot dispute these facts. Citing Cohn, thecourt found ample support for the findingthat the husband would be unable to paymaintenance or support if so ordered.10

In re Mariage of Wade, bifurcation was al-lowed due to an unusually protracted liti-gation in which the wife was intentionallydelaying proceedings by, inter alia, repeat-edly changing counsel.11 The Court foundthat bifurcation was justified “to protectand promote the emotional and mentalwell-being of the parties’ children.”12 TheWade court relied on similar justificationsas In re Marriage of Kenik,13 where the wifewas pregnant from another man and dis-solution was in the best interests of the un-born child; and In re Marriage of Blount,14

where the emotional health of the elderlywife was grounds for bifurcation.

As an example of a lack of appropriate cir-cumstances, the court In re Marriage ofBogan,15 found that a husband’s inabilityto perform as chairman and chief execu-tive officer of a bank because he could notparticipate in community activities, con-ventions, and networking events until themarriage was dissolved, was not an appro-priate circumstance to grant bifurcation.

Must be Related to the MarriageThough not explicitly stated by the Courts,the jurisprudence of bifurcation cases in-dicates that “appropriate circumstances”must somehow concern the marriage,rather than external factors. Specifically,all of the cases in which bifurcation wasgranted involved issues relating to the

8 Id. at 199.9 In re Marriage of Schweihs, 272 Ill.App.3d 653 (1st Dist. 1995).10 Id. at 661.11 In re Marriage of Wade, 408 Ill.App.3d 775 (1st Dist. 2011).12 Id. at 780.13 In re Marriage of Kenik, 181 Ill.App.3d 266 (1st Dist. 1989).14 In re Marriage of Blount, 197 Ill.App.3d 816 (2nd Dist. 1990).15 Bogan, supra, 116 Ill.2d 72.

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marriage or the parties’ rights as betweenthemselves and their children, includingthe children’s welfare (Wade, Kenick,supra.), the welfare of one of the parties(Blount, supra), or relating to maintenanceor child support (Schweihs, Cohn, supra.)

The standout case in which bifurcationwas not granted is Bogan, supra, where thehusband claimed that his marriage andseparation impeded his professional abili-ties. The Court in Bogan simply stated thatthey were “not persuaded that respon-dent’s inability to perform the social func-tions expected by his employer inconnection with his job constitutes an ap-propriate circumstance for bifurcation.”16

As a result, a litigant who wishes to speedup divorce proceedings for a superficial orancillary reason not related to the childrenor the rights between the parties will likelynot succeed in bifurcating the action.

Avoiding “Complications” and “Entanglements”The Cohn court stressed that the historicalnotes of Section 401 “encourages thecourt to decide all matters incident to thedissolution in a single judgment, to thefullest extent of its authority, in order toachieve finality, promote judicial economy,and avoid multiple litigations and compli-cations which can result from the entry ofpartial judgments.”17

The court cited various examples of “com-plications” which can result from partial

judgments, including adjudicating maritalproperty rights that have become entan-gled with the supervening rights of thirdparties, such as subsequent spouses; com-plicating the rights of a surviving spousein the event of an intervening death; theloss of ability to file joint income tax re-turns; the loss of medical insurance cover-age; and the loss of marital-propertytreatment for property accumulated dur-ing the intervening periods between ajudgment for dissolution and the final dis-position of property rights.18

Courts are loathe to grant bifurcations ifthere are such “complications” and “en-tanglements.”19 Any case that involvescomplex assets such as extensive real prop-erty or business interests is not likely to bebifurcated, as it is likely to bring up issuesof third party rights, and particularly val-uation. For example, if a party defaults ona debt collateralized by a marital asset be-tween the time the marriage is dissolved,but before the final judgment dividingmarital assets, the rights of the non-de-faulting spouse as to the collateral is un-certain and subject to further litigation.

Valuation of Assets in a BifurcatedDivorcePursuant to In re Marriage of Awan,20 theappropriate date of valuation of an assetsubject to a bifurcated divorce is the dateof dissolution, not the date of the finaljudgment. This opinion was affirmed In reMarriage of Mathis,21 which looked to

IMDMA Section 503(f), which states thatthe court, when considering the “value ofmarital and non-marital property for pur-poses of dividing the property, shall valuethe property as of the date of trial or someother date as close to the date of trial as ispracticable.” The court reasoned that oncea marriage is dissolved, property accumu-lated thereafter is no longer consideredmarital property; and therefore, maritalproperty rights shall not inure to propertyafter a marriage is dissolved.

The key practical difference between thetwo dates is that on the date of dissolution,the marriage is legally dissolved before thecollateral issues such as assets are deter-mined by the final judgment. Once themarriage is dissolved, the value of a mari-tal asset is fixed on that date. As an exam-ple, if a husband’s stock account is valuedat $100,000 at the time of the dissolution,but by the time there is a final judgmentawarding the account to the husband, itincreases in value to $300,000, the wifecan only claim her marital share of the ac-count at the time of dissolution when itwas worth $100,000. Therefore, a signif-icant increase or decrease in the value ofan asset after the dissolution but before thefinal judgment could subject one party to awindfall to the detriment of another party,inviting further litigation that courts wantto avoid.

Appealability of BifurcationThe specific nature of a dissolution has

16 Id. at 80-81.17 Cohn, supra, 93 Ill.2d at 197.18 Id. at 198–99.19 Kenick, supra, at 278.20 388 Ill.App.3d 204, 209-11 (3rd Dist. 2009).21 2012 IL 113496, ¶45..


made the appealability of a bifurcatedjudgment particularly difficult. A judg-ment for dissolution of marriage is consid-ered a single claim, and all other claimsrelated thereto (maintenance, custody,property, etc.) are ancillary.22 Followingthis reasoning, without a judgment for dis-solution of marriage, no other determina-tions on ancillary claims are resolveddespite a judgment stating otherwise.Moreover, the court In re Marriage ofLeopando stated that even a special findingunder Supreme Court Rule 304(a) thatthere is “no just reason for delaying eitherenforcement or appeal or both” of thejudgment of dissolution, would not allowappealing ancillary issues in a bifurcateddissolution.23 Supreme Court Rule304(b)(6) has since been added, in re-sponse to Leopando, to state that custodyjudgments are appealable without a spe-

cial finding and are to be treated as distinctclaims in order to “promote stability forfamilies and to obtain swift resolution ofchild custody matters.”24

The supreme court in Bogan later clarifiedthe Leopando finding, stating that “allow-ing a litigant to appeal the bifurcation of ajudgment, where timely objection wasmade before the trial court, does not en-courage piecemeal appeals involving thedissolution itself or the ancillary issues.”25

This would allow a litigant to argue thatthe bifurcated judgment was entered with-out a finding of “appropriate circum-stances.” The Bogan court further notedthat if a litigant was forced to wait until allancillary issues were decided, it would ren-der an appeal on the propriety of the bi-furcation moot. The unified nature of aclaim for dissolution and the ancillary is-

sues was solidified by the Third Distric In reMarriage of Tomlins.26 Tomlins cites Boganand its progeny for support that a bifur-cated judgment is indeed a final and ap-pealable judgment under Supreme CourtRule 301, and therefore, a special findingunder Rule 304 is irrelevant and unneces-sary.27 The net effect is that a bifurcatedjudgment is appealable regardless ofwhether any ancillary issues remain un-resolved.

Mark Schondorf practices primarily divorce,family law and collaborative law in Cook andLake County. He maintains an office in North-field, Illinois and can be reached by e-mail [email protected], by telephone at(312) 685-2848, on the web atwww.SchondorfLaw.com, or on LinkedIn atwww.linkedin.com/in/markschondorf.

22 In re Marriage of Leopando, 96 Ill.2d 114, 120 (1983).23 Id.The Court pointed to Supreme Court Rule 306 regarding interlocutory appeals as the proper vehicle for appealing separate issues.24 See Committee Comments to Ill. Sup. Ct. Rule 304(b)(6), added in February 2010.25 Bogan, supra, 116 Ill.2d at 76.26 In Re Marriage of Tomlins, 2013 IL App. (3d) 120099.27 See Tomlins, supra, ¶21 (citing Bogan, 116 Ill.2d at 76); Awan, 388 Ill. App. 3d at 210; Wade, 408 Ill. App. 3d at 781; Copeland v. McLean, 327 Ill.App.3d 855(4th Dist. 2010); Blount, 197 Ill.App.3d 816.


Bear with me for a few generalities:often, daily life for a mentally illperson is incongruous with the

laws of society. When brain chemistryconfuses the issue, decision-making

erodes, andthe questionof whether anaction is legalb e c o m e sb lur red—i fnot ignored.As a result,the person ischarged witha crime andenters the jus-tice system.

If you arelooking for an

analysis of where our nation’s (or state’s)laws regarding mental illness have gonewrong, you’ve come to the wrong article.Rather than dwell on what cannot bedone, or on what needs to be done by ourlawmakers, let’s talk about what optionsexist for the lawyers—defense attorneys,prosecutors and judges—who deal withmentally ill criminal defendants on a dailybasis. More specifically, this article ad-dresses how the Criminal Code and theMental Health Code provide for opportu-nities to have a defendant examined by amental health professional.

Our most common reaction to thetragedies in Newtown, Aurora and the likeis to shake our heads and think, “Some-one should’ve done something.” Whileepisodes of such a numbness-inducingscope are extremely rare, miniature ver-sions occur every day, and are no less im-pactful to those affected. The reality is

that, as a lawyer practicing in LakeCounty, Illinois, in the year 2013, if youencounter a defendant with serious men-tal health issues, there is something youcan do.

That “something” is to get the personevaluated by a psychiatrist and/or a psy-chologist. While this is not a lofty goal—atwelve-week commitment in which thedefendant engages in daily psychotherapyand pharmacology may be the best “solu-tion” (and I use quotes because, let’sagree, there is not an actual solution tomental illness) - it is realistic, and the beststarting place for getting a mentally illperson substantive treatment. A lawyer isnot a therapist or medical professional,and the first step to stabilizing mentally illindividuals is an evaluation to determinetheir particular affliction.

In a global sense, this is where it may, iron-ically and with full deference to victims,be a good thing that the person enteredthe criminal justice system; he was previ-ously undiagnosed and untreated, but be-cause he was charged and encountered awise attorney (i.e., you), he is on the roadto treatment of his illness. From your per-spective, while your instinct upon han-dling a case involving a mentally ill personmay be to dispose of the case in the quick-est way possible because of its seeminglyinevitable messiness, the reality is thatputting some decisions in the hands of adoctor will likely relieve you of pressure.

The options begin at the very outset of acriminal case. At an arraignment, a crim-inal defendant has just four plea options:

• Guilty• Not guilty• Guilty but mentally ill1 (mentally ill at

the time of the offense)• Not guilty by reason of insanity2 (at thetime of the offense, lacking substantialcapacity to appreciate the criminality ofthe act, as a result of a mental diseaseor defect)

If the defendant gives notice of an intentto pursue either of the latter two pleas (orif the “facts and circumstances of the casejustify a reasonable belief ” that they maybe raised), the Court must grant a Statemotion that the defendant submit to anexamination by a psychologist or psychia-trist, and if requested, a neurologist andelectroencephalographer (to measurebrain activity).3 Defense attorneys’ fearsover the content of the exams should beassuaged by the qualifier that statementsdivulged in such an exam are not admis-sible against the defendant, but for theirrelevance to the actual defense of insan-ity.

Often, you may not even know whetherthe defendant is actually afflicted withmental illness, but there are several op-tions for having the defendant evaluatedto determine just that. Regardless of thedefendant’s plea, a judge may, as a pretrialbond condition, order that the defendantundergo psychiatric treatment to the ex-tent “reasonably necessary to assure thedefendant’s appearance in court, protectthe public from the defendant, or preventthe defendant’s unlawful interferencewith the orderly administration of jus-tice.”4

Either before trial or as part of a plea, an-other option for a mentally ill individual isMental Health Court. The goal of this spe-cialty court is the ultimate dismissal ofcharges (if completed before a plea ofguilty) or a successful termination of a

Fit to be TriedWhat Every Criminal Lawyer Should Know About Mentally Ill Defendants

By

KevinBerrill

1 725 ILCS 5/115-2.2 720 ILCS 5/6-2. 3 725 ILCS 5/115-6.4 725 ILCS 5/110-10(b).


sentence (if completed after a plea ofguilty). Upon agreement between the de-fendant and prosecutor, and with courtapproval, the first step in determining adefendant’s eligibility for Mental HealthCourt is an assessment regarding the de-fendant’s mental health and its relation tothe charged act.5

At any time during a criminal proceed-ing—even post-trial—the issue of the de-fendant’s fitness may be raised by thedefendant himself, the State, or the court.6

That is, when any party to the proceedingraises a bona fide issue of whether the de-fendant, because of his mental condition,“is unable to understand the nature andpurpose of the proceedings against him orto assist in his defense,” the court must

order an examination to be conducted byone or more physicians, psychologists orpsychiatrists.7

To this point, each of the referenced op-tions for initiating mental health evalua-tions was sourced from the Criminal Code.However, in misdemeanor cases, lawyerscan also look to the Mental Health Codefor guidance.8 Any person over the age of18 (and unless you’re the Doogie Howserof lawyers, that includes you) who be-lieves the defendant, as a result of a seri-ous mental illness, is a threat of physicalharm to himself or others, may petitionthe court to execute a writ directing thesheriff to transport the defendant to amental health facility9 for examination.10

This option may also be pursued if the de-

fendant’s serious mental illness has ren-dered him unable to provide for his basicphysical needs.

Even without such a petition, judges haveunilateral authority to order examina-tions of this nature in certain circum-stances. If, after personal observation incourt, a judge has reasonable grounds tobelieve that the defendant meets the“harm to self or others” or “basic needs”standards, the judge may enter an orderdirecting the sheriff to transport the de-fendant to a mental health facility for ex-amination.11

Even after a guilty plea or trial (or as partof a plea, as explained earlier in referenceto Mental Health Court), there are oppor-tunities to have the defendant examined

5 730 ILCS 168/1 et seq.6 725 ILCS 5/104-11(a)7 725 ILCS 5/104-10 et seq. 8 Persons charged with a felony are not subject to the Mental Health Code, the underlying theory being that the Criminal Code provides more appropriate juris-diction over such a defendant. See People v. Zahn, 71 Ill.App.3d 585, 589 (1st Dist. 1979); see also People v. Kenton, 377 Ill.App.3d 239, 247 (4th Dist. 2007).9 In Lake County, the only inpatient mental health facilities are the Lovell Federal Health Care Center (for those with veteran’s benefits) and Vista Medical CenterWest. If a person is without veteran’s benefits or any other medical insurance, they may eventually be transferred to Elgin Mental Health Center.10 405 ILCS 5/3-601. Of course, the option to pursue involuntary commitment is not limited to persons charged with a crime. In fact, any person not charged witha felony who meets the applicable standard is subject to involuntary admission. 405 ILCS 5/3-100.11 405 ILCS 5/3-607.

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by a mental health professional. Forfelons, the court may order that a presen-tence investigation include a mental ex-amination to be conducted by a physician,psychologist or psychiatrist.12 In caseswhere the defendant is placed on proba-tion or supervision, the terms may includepsychological or psychiatric treatment.13

Even if a defendant is serving a jail sen-tence, the Mental Health Code provides forinvoluntary treatment options when theapplicable standards are met.14

Again, this article seeks only to informyou on the options for seeing that the de-fendant’s mental status is examined by aprofessional. Depending on both the de-fendant’s mental status and the specific

statute being applied, there are countlessavenues down which the examinationmay lead. I encourage you to review theapplicable statutes. Defense attorneysshould consider these options in the con-text of pursuing the best interests of theirclients, and prosecutors must analyze theissue in a way that is conducive to seekingjustice.

While there is usually not a complete so-lution to a given person’s mental illness,there are treatments and therapies thatpromote a safe and tolerable lifestyle. Ourprofession provides us with a unique op-portunity to help make this happen.

Kevin Berrill hasbeen an Assistant

State’s Attorney in the Lake County State’s

Attorney’s Office since 2008. Since 2011,

he has practiced in the Civil Trial Division;

among his duties, he is part of the division’s

Mental Health Team. He obtained his J.D.

from the University of Illinois College of Law

(’05) and earned a B.B.A from the Univer-

sity of Notre Dame (‘02). After law school,

he practiced at the firm of Stitt, Klein, Daday,

Aretos & Giampietro, LLC.

12 730 ILCS 5/5-3-2(b).13 730 ILCS 5/5-6-3. 14 405 ILCS 15/1.

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FridaySeptember 6, 2013

8:00 a.m. - 11:00 a.m.LCBA

OSDD destroys media and hard drives on site in

Northboook, for a small fee they will take your Hard

Drive ($5.00 each) and Media ($.35 per pound).

*OSDD will issue a Certificate of Destruction upon request.

Shred your old files for FREE!


Join us for our semi-annual clean-up of Washington Street, between Green Bay and Route 41

We will meet in the parking lot of CVS at the corner of Green Bay Road and Washington St.

Adopt-a- HighwaySaturday, October 5, 2013

8:00 - 10:00 a.m.

Cleaning closets?Drop off gently used men’s and women’s professional attire, children’s clothing and winter coats.

All clothing will be donatedto the 19th Judicial CircuitSpecialty Court programssuch as Therapeutic Intensive Monitoring (TIM),Mental Health, and VeteransTreatment and AssistanceCourt (VTAC).

November 4-8, 2013LCBA Office • 8:00 a.m. - 5:00 p.m.

Law Suit DaySCLothing Drive

Consent Agenda• Minutes from June 2013meeting.

• New Members since June2013

• LCBA / Clerk of Courts joint e-filing efforts

• Prairie State Legal ServicesPrivate Attorney Plan

The Consent Agenda wasadopted without objection.

Dues ReportIt was reported that the Associ-ation has $132,418.97 onhand as of June 28, 2013,which significantly exceeds ourposition from June 2012. In-creased revenue from dues andfrom MCLE offerings is a largepart of this gain. Projecting out-standing debt and expected con-tinued dues revenue, theAssociation’s position is nearly$20,000 net gain over last year.At present, there are more pres-ent members with membershipexpirations in July, 2013 thanthere were in July, 2012 and anumber of those remain out-standing. Total membership hasnow grown to 981.

The Golf outing is expected toshow a net profit of approxi-mately $5,200 when all out-standing obligations are met.The Board recognizes the effortof Outing Chair Michael Ori,who in turn recognizes the es-sential contributions of Execu-tive Director Chris Boadt andAssistant Director Virginia El-liot. Congratulations to the win-ning team consisting of JamesBertucci, Jeffrey Nutschnig,Donald Morrison and Tim Konz.

The Association continues toplan for the possible shift ofsome portion of its financial re-serve into its account with

Baytree Financial. While somevariables remain to be deter-mined, it is expected that thisamount will be roughly equiva-lent to last year’s.

Fall Luncheon ProposalExecutive Director Boadt reportsthat, in an effort to reduce costto members and increase atten-dance, the Association has re-viewed options for alternativevenue and menu options for the2013 Fall Luncheon series. Di-rector Boadt reports that pres-ent cost to members is $25 perluncheon in advance and $30at the door. Members have pro-vided feedback indicating thatthis pricing structure is morethan many would wish to pay.

Historically, pricing of theluncheons has been designed to“break even” once all costs arefactored in, this was the guidingprinciple in the review. DirectorBoadt recommends and theBoard concurs with a signifi-cantly reduced pricing structureof $15 in advance and $20 atthe door. This will require a con-current adjustment of the pro-gram offering. It isrecommended the Associationmove the venue to either Green-belt Cultural Center or theWaukegan City Hall Chambers.It is recommended that the As-sociation assume responsibilityfor set-up, clean-up, and for thefood delivery. In order to meetthe greatly reduced luncheonfee, it is recommended thatmeals be procured from Brown’sChicken, Potbelly Deli and Ji-mano’s Pizzeria (which were thethree restaurants offering thehighest value to cost menuchoices).

Director Boadt notes that theWaukegan City Hall Chamber is

being offered at no cost to theAssociation, this venue will beused for the September (ProBono Awards) Luncheon, whilethe October and Novembermeetings will be at Greenbelt(where the slightly higher costwill be offset by the Septembersavings).

The Board wholeheartedly ac-cepted these suggestions, notingthat a number of board mem-bers had also received feedbackfrom members indicative of ageneral desire for lower cost op-tions. This three luncheon serieswill be an attempt to offer ahigh-value program in a pleas-ing venue with a low cost pric-ing structure designed toencourage increased memberparticipation.


July 2013

Board of Director’s Meeting

ByKeithGrant,Acting

Secretary

Minutes

MEMBERS PRESENT

Steven P. McCollumPresident

Keith GrantFirst Vice-President

Michael OriSecond Vice-President

Michael ConwayTreasurer

Jennifer HoweSecretary

Marjorie SherImmediate Past President

Gary SchlesingerDonald MorrisonHon. Daniel ShanesCarey SchieverBrian LewisStephen Rice

Chris BoadtExecutive Director


A motion was made, secondedand carried and it was resolvedthat the Association FallLuncheon Series will be struc-tured using Director Boadt’senhanced value plan. This ef-fort will be publicized and ex-plained in the fliers for theevent and the President’s pagein The Docket.

Court Access CommitteeCommittee Chair Don Morri-son reported that the Commit-tee continues its efforts tofacilitate enhanced court-house access opportunities forattorneys practicing in LakeCounty. Most recently, Presi-dent McCollum participated inseveral courthouse securitytours in neighboring counties.

In DuPage County, Chief JudgeJohn Elsner reported that theirprogram of express access forattorneys has proven very suc-cessful and reduced crowdingat courthouse access points.Under the DuPage system, at-torneys apply to the DuPageCounty Bar Association andare issued a photo ID cardwhich contains a smartchipcontaining their professionalinformation. This is not a BarAssociation membership cardand issuance is not contingentupon Association member-ship. The card is swiped at se-lect courthouse access points,permitting the holder to accessthe professional securityscreening points. Each cardholder is fully screened, but ina reduced volume line whichcuts down on attorney waittime to reach the courtrooms.

Kane County has implementeda similar system, absent thesmart card aspect and reportssuccess in diverting attorneysand courthouse employees toseparate screening lines, en-hancing speed of access whilenot compromising security.

In Rockford, the Federal Court-house compels full screeningof all persons entering the fa-

cility (but has a lower daily en-trance volume which permitsthis without increasing en-trance processing time). TheWinnebago County Court-house has created an entirelyseparate attorney/employeeentrance with full screeningbut reports low user numbersat that entrance possibly ex-plained by the overall lowervolume of daily entries.

The Committee recommendsthat the Association continueto work with the Lake CountySheriff and the 19th CircuitCourt to create a program per-mitting enhanced or expressentry for attorneys and countycomplex employees. It is rec-ommended that the Associa-tion stand ready to implementa program to offer approvedaccess cards to attorneys meet-ing the access standards beingdeveloped. This would includethe purchase, operation andmaintenance of all equipmentand software necessary to pro-duce and issue tamper-proofidentification cards to each ap-plicant attorney. The Associa-tion would offset the cost ofthis program through a pro-cessing fee for applying attor-neys (Association membershipnot being a prerequisite to is-suance).

It was also suggested that asmartcard such as this couldbe utilized as a sort of court-house debit (or pre-paid credit)card, where funds stored onthe card by the attorney(through the Association)could be used to pay court-house expenses (filing fees, etc)or to purchase delicious re-freshments at the coffee cart orcafeteria.

It was resolved that PresidentMcCullom and CommitteeChair Morrison will continueto advise both the Lake CountySheriff and the 19th JudicialCircuit of our ongoing com-mitment to a reasonable pro-gram of enhanced attorney

access that doesn’t degradecourthouse security. To thatend, they will communicatethe Association’s willingness

to procure and manage allnecessary equipment and co-ordinate its integration withall implemented rules of court-

house access.

New Committee ProcessIn the recent past, severalgroups have expressed interestin starting a new committee.Each has been informed thatthey must create a descriptivecommittee mission statementand obtain the signatures oftwenty LCBA members inter-ested in participating in thatcommittee. Each recent efforthas failed to obtain the requi-site signatures. At present aproposal to create a Bank-ruptcy Law Committee is be-fore the Association. It isproposed that the Associationutilize its web presence on thisand future such proposals tofacilitate interested memberparticipation.

2013 Unity Award DinnerThe Unity Award Dinner willtake place on October 10,2013 at the Chicago Hilton.The Board authorized thePresident to select two Associ-ation members who are inter-ested in attending asrepresentatives of the LCBA.

Community OutreachCommittee Chair MarjorieSher reports that the “WillsFor Heros” program (prepar-ing simple wills for first-re-sponders) is ready forimplementation in LakeCounty. The Chicago Bar Asso-ciation is very experienced inthis program and has offeredto loan the LCBA all necessaryequipment (workstations,

printers etc) and guide usthrough the first few sessionswith on-location staff. SheriffCurran has offered space in hisoffice and has officers inter-ested in participating in a pilotprogram.

The Board expressed someconcern regarding participantliability and Chairman Sherwill confirm with the CBA thatthis issue is covered by the pro-gram.

A motion was made, secondedand carried and it was resolvedthat the Community OutreachCommittee will coordinate aWills for Warriors pilot pro-gram at the Lake County Sher-iff ’s Office with assistance fromthe CBA.

Committee LeadershipPositionsPresident McCollum reportsthat all committee leadershippositions have been filled ex-cept that the Website Commit-tee and the EmploymentCommittee are in need of will-ing Chairpersons. Interestedparties should contact Presi-dent McCollum.

The next Board of DirectorsMeeting is scheduled for Au-gust 15, 2013.

There being no additionalbusiness, it was duly moved,seconded and carried and itwas resolved that the meetingwas adjourned.


Judge Joseph Waldeck became a grandfather: BenjaminChristopher Waldeck was born to Michael and MeaghanWaldeck onJuly 27 inChicago.

J o s hSchwartz hasleft the State’sAttorney’s Of-fice for privatepractice. He isnow with theBuffalo Grovefirm ofSchwartz Wolf& Bernstein,(847) 459-4999.

K i m b e r l yFurrer andV i n c e n tStavros arenew additionsto the LakeCounty State’s Attorney’s Office, assigned to the Traf-fic/Misdemeanor Division.

John Steigauf has joined Gibson & Associates, Ltd., con-centrating his practice in the areas of personal injury,wrongful death, medical malpractice and products liability.

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30 Years Experience

REAL TIME • VIDEOGRAPHER • E-TRAN


Save the DateYoung & New Lawyers

Reception

Sponsored by:LCBA Criminal Law Commitee

ThursdayOctober 10, 20135:30 – 7:30 p.m.

The Wooden Nickel444 Lakeview Avenue • Highwood

(Two blocks from Highwood Metra stop)

Appetizers hosted by Steven Simonian,Chair, Criminal Law Committee

Trusts & EstatesAnnual Conference

November 15, 2013

Knollwood Country ClubLake Forest, IL

3.5 CLE Hours


Calendar of Events

For more information or to register, go to the calendar at: www.lakebar.org

September 63rd Annual Shred Event

LCBA Office

September 12Free Membership Reception

Meet the JudgesLCBA Office

September 19-20Annual Criminal Law Seminar

Milwaukee, WI

September 25Membership Luncheon: Pro Bono AwardsWaukegan City Hall Counsel Chambers

****Guardianship Help Desk Training

LCBA Office

October 5Adopt A Highway

Sponsored by: Criminal Law

October 10Young Lawyer Mixer

Wooden Nickel, Highwood

October 11Coffee at the Courthouse

Jury Assembly Room

October 23Membership Luncheon:

State of the Judicial SystemGreenbelt Cultural Center

October 24Free Membership Reception

Meet Prairie State Legal ServicesLCBA Office

November 4-8Law Suit Days Clothing Drive

LCBA Office

November 14Free Membership Reception

Meet Michael Nerheim & Joy GossmanLCBA Office

November 15Coffee at the Courthouse

Jury Assembly Room

****Trusts and Estates SeminarKnollwood Country Club

November 20Membership Luncheon: ARDC Update

Greenbelt Cultural Center

December 6Holiday Party • TBD

December 20Coffee at the Courthouse

Jury Assembly Room

February 21 & 22Gridiron • Round Lake Beach Cultural Center

March 6-920th Annual Family Law Conference

New Orleans, LA


LCBA

BulletinBoard

For lawyer who is just starting out ontheir own. Cubicle available with use ofconference room, phone and computer.Downtown Barrington. Please contactMichelle at 847-382-3666.

GURNEE LAW OFFICETwo (2) offices and reception area avail-able – off of Route 41 – $400 permonth/per of fice. Will consider legalservices in exchange for rent. Please callDebbie at 847-623-4002 or [email protected] for more informa-tion.

DOWNTOWN WAUKEGANAcross from Courthouse, 275-1800square feet. Janitorial provided. Wellmaintained. Space available. 33 N.County & 325 Washington. Please callRon Pollack at (847) 482-0952.

DOWNTOWN WAUKEGANOffices for Lease. 200 N ML King Ave. 1,2 or 3 Offices. 280 to 685 Sq Ft. OfficeBuilding for Sale or Lease. 222 N CountySt. 11, 756 Sq. Ft. Will Divide. (847) 680-4740. www.tjproperties.com.

MonthlyCommittee Meetings

Day Meeting Location Time

1st Tuesday Diversity (odd months) LCBA 12:00-1:15

1st Thursday Real Estate In-Laws 5:00-6:30

1st Thursday Young & New Lawyers LCBA 12:00-1:15

2nd Tuesday Technology (odd months) LCBA 12:00-1:15

2nd Tuesday Immigration LCBA 4:30-5:30

2nd Wednesday Family Law Advisory Group LCBA 12:00-1:15

2nd Friday Community Outreach (Odd # Months) LCBA 12:00-1:15

3rd Tuesday Local Government LCBA 12:00-1:15

3rd Wednesday Family Law C-103 12:00-1:15

3rd Wednesday Employment Law (Odd # Months) The Grille on Laurel 5:15-6:30

3rd Thursday Board of Directors LCBA 12:00-1:30

3rd Thursday Trusts & Estates Various Locations 7:00-8:30

3rd Thursday Civil Trial & Appeals Lake House 5:00-6:30

4th Tuesday Criminal Law Potesta’s 12:00-1:15

* Meetings subject to change, please check your weekly e-news 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 bever-ages at restaurants are purchased on a individual basis.


byCarlton R. MarcyanPresident, Lake County Bar Foundation

Building CamaraderieExploring Strategic Direction

As part of our efforts to increase the visibility of the Foundation we have scheduled“get-togethers” over the coming months. There is an upcoming, informal recep-tion at the LCBA headquarters Thursday, September 12 between 4:30 to 6:00

p.m. to meet the Judges. We will also sponsor a “Coffee in the Courthouse.” Chief JudgeForeman has coordinated approval for us to host coffee for lawyers and judges, withoutcharge, on the dates listed below in the jury assembly room; please try to participate andencourage others to do the same:

Friday, October 11 8:00 – 9:30 a.m.Friday, November 15 8:00 –9:30 a.m.Friday, December 20 8:00 – 9:30 a.m.

Largely through the efforts of Chris Boadt, we constructed a survey concerning the Foun-dation that was emailed to all 900 plus members of the LCBA. We received 168 re-sponses. The response rate was not too different from that of judicial evaluation surveysthat yield a little over 200. More than 86% had been in practice for seven or more years.Approximately 83% were aware that there was a Lake County Bar Foundation. By farthe respondents believed that the Foundation should be providing support to legal serv-ices for the indigent, followed by providing financial assistance to lawyers “in need” andthen for promoting educational, charitable and public education programs.

Just over 60% disagreed that the Foundation should only benefit Lake County lawyers,and almost 64% felt that the Foundation should orient benefits to non-lawyers in LakeCounty. 75% felt that that the Foundation should benefit lawyers and non-lawyers inLake County.

Almost 60% would financially support a bi-annual dinner dance with a similar percent-age in favor of the Foundation purchasing office space in Waukegan to be leased to theLCBA and be a focal point for Lake County lawyers to meet, socialize and participate incontinuing legal education.

Based upon the survey and the Foundation Board’s input, we will be making strategicdecisions in the upcoming months that assist the Lake County legal community and thecommunity at large.

As always, if you have any ideas, concerns, or input, please contact us.

January 2013 The Docket 37

300 Grand Avenue, Suite AWaukegan, IL 60085

Tel: 847-244-3143Fax: 847-244-8259

PRST STNDUS POSTAGE

PAIDGURNEE, IL

PERMIT NO. 356

Complimentary Membership Receptions

A casual comfortable atmosphere to meet and greet

leaders of the legal community. Wine, soft drinks

and hors d’oeuvres provided. RSVP to [email protected]

• Meet the Judges: Thurs., Sept. 12

• Meet Prairie State Legal Services: Thurs., Oct. 24

• Meet Michael Nerheim & Joy Gossman: Thurs., Nov. 14

Lake County Bar Association @ 4:30 – 6:00 p.m.

2013 Fall Luncheon Series

Reduced fee for fall luncheons is $15.00 per lunch.

Call 847-244-3143

• Pro Bono Service Awards: Wed., Sept. 25 @ Noon

Waukegan City Hall

• State of the Lake County Legal System: Wed., Oct. 23

@ Noon, Greenbelt Cultural Ctr.

• ARDC Update with James Grogan: Wed., Nov. 20

@ Noon, Greenbelt Cultural Ctr.

Coffee in the Courthouse

Complimentary coffee and pastries in the jury assembly

room. All attorneys and judges are invited. RSVP

appreciated but not required. RSVP to [email protected]

• Fri., Oct. 11 @ 8:00 – 9:30 a.m., Jury Assembly Room

• Fri., Nov. 15 @ 8:00 – 9:30 a.m., Jury Assembly Room

• Fri., Dec. 20 @ 8:00 – 9:30 a.m., Jury Assembly Room

BUILD YOURNETWORK9 EASY STEPS

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