Closing Argument

A trial lawyer's commentary on his practice, developments in the law, and occasionally, life in general.


I hope you enjoy my blog. I am a trial attorney with offices at 100 West Monroe, Suite 1900, Chicago, Illinois. A large portion of my practice involves the representation of persons who have been injured due to auto accidents, work accidents or medical malpractice. In addition, I also also represent a select number of clients with business, commercial or employment disputes. If you wish to talk to me about a case, please contact me at my office, 312/346-3715 or email me at

Tuesday, December 28, 2004


Before reviewing several cases I've recently seen in the news, a quick comment on my Top Ten Hot Legal Commentators sucked. Two weeks after the post and not a single comment, much less a vote. Man, what a disappointment. I really thought the idea was quite visionary. Apparently not.


Hey, the Governator is being sued. By an Illinois lawyer nonetheless. Seems that Susan Loggans, a Chicago personal injury attorney purchased Ahnuld's home in Pacific Palisades for a cool 8 million but is now suing him for failure to fully disclose a number or problems in the home. The complaint, available at The Smoking Gun, claims that Arnold didn't fully disclose damage to the pool, tennis court and screening room. The complaint seeks to have the matter referred to arbitration.

As reported on AOL on December 21, Lavern Bracy is suing Wal-Mart for $25 million, claiming that Wal-Mart was negligent in selling Bracy's daughter, Shayla Stewart, a shotgun. Stewart subsequently used the weapon to kill herself. The lawsuit was filed in Dallas, Texas. Bracy's theory is that had Wal-Mart checked their own security files, or pharmacy department records, they would have discovered that Stewart was a manic-depressive and schizophrenic, who had previously caused disturbances in the store. And Bracy claims that had Wal-Mart done appropriate checking, they never would have sold the gun to Ms. Stewart. Wal-Mart, not suprisingly disagrees, with good reason. First, pharmacy records are confidential, so they couldn't have been accessed. Furthermore, Wal-Mart did indeed do a background check, as required under Texas law. Stewart's name didn't show up in FBI databases, as said databases don't include mental health records from 37 states, including Texas. Furthermore, Stewart had incorrrectly indicated on a form questionnaire provided by Wal-Mart that she had never been committed to an institution or declared dangerously mentally ill.

This sounds like a tough one for the plaintiff. The pharmacy records are confidential, the applicant lied on her form and nothing showed up in the background check. Could get tossed on a motion.


And finally, a college student is now suing her former high school district for barring her from the 2004 prom because she was wearing a dress styled as a Confederate flag. Jacqueline Duty, now 19, sued in federal court in Lexington, Kentucky. She is alleging that Greenup County School District officials and others violated her right to free speech and her right to celebrate her heritage. She is seeking damages in excess of $50,000.

Duty admits that she was advised beforehand not to wear the dress, but she didn't have another one and decided to test the school officials. She was apparently met outside the dance by officers and a school official and not allowed into the dance.

I hope her attorney is talented. It will take some doing to convince a judge or a jury that this case has any merit. First, public officials, including school officials, certainly have discretion to ban offensive clothing that might be disruptive. Schools all over the country have been banning gang colors, hats, and bandanas for years. In this case, school personnel warned her AHEAD OF TIME that she would be barred. But she needed her notoriety so she ignored the warnings and decided to blaze ahead with her Confederate dress. And because she got barred, she has elected to tie up a federal courtroom with this silliness. Your 15 minutes are just about done Ms. Duty.

Monday, December 13, 2004


Before announcing the contest noted above, I have to take some time to congratulate someone I am very close to - myself. In looking through my past blogs for the year, I correctly predicted that the prosecution would drop Kobe Bryant's case on August 16, 2004. In the interests of complete disclosure however, the very next day, August 17, 2004 I waivered - but did not change my prediction.

Also, way back on April 27, 2004, in discussing former Rep. Gary Condit's libel suit against Vanity Fair contributor Dominick Dunne, I mentioned that he may have to answer some rather "personal" questions regarding his relationship with Chandra Levy if he pressed his suit. Just last week a Federal Court magistrate did rule that Condit would have to answer certain personal questions about the nature of his relationship. At the first session of Condit's depo he had refused to answer. Condit has now apparently elected to answer those questions and move forward with the lawsuit.

And finally, I am hereby announcing the First Annual Top Ten Hot Legal Commentators Contest. Not particularly complicated. Create a list of the Top Ten Hot Legal Commentators you have seen on the airwaves. There are no restrictions - they can be on free television or cable. Hell they can even be on radio[for all you guys who lust after Nina Totenberg of NPR]. I really don't care. Just get your selections to me by December 27, 2004 and I will painstakingly assess the data and announce the winners the first week of January, 2005, or sometime thereafter. I intend to email the winners and see if they have any sense of humor. I am even willing to give you some of my thoughts:

Kimberly Guilfoyle Newsom ABC News
An early favorite. Good-looking, well-spoken, objective, with just the right touch of naughty. Married, at the moment, to Gavin Newsom, the current Mayor of San Francisco.

ABC News
Local Reporter Covering Peterson trial
Can't remember her name[and GMA website doesn't have it]. Very attractive young Hispanic woman who has been covering the deliberations etc. for the last couple of weeks. My personal favorite.

Cynthia McFadden, ABC News
Nice looking woman, but will have a tough time garnering same numbers as the younger gals.

Greta Van Susteren, Fox News
Got a lot of publicity from the new face. Seriously doubt it will help.

Those two women who argue about criminal cases all the time on CNN.
You know, one brunette, former prosecutor who is kinda cute in a Catholic school girl way. The other one, blond criminal defense attorney out of Florida is very smart and ... well she is smart.

Nancy Grace.
No, No, No.

I will leave Male Category commentary to female fans of this site, or gay men fans of this site.

So get your votes in early and often. Identify your choice by name[which I neglected to do for several women above]and the station where he/she works. Again, winners announced first week of January, 2005.

Thursday, December 09, 2004

Texas Justice?

On Thursday, December 9, 2004 the Chicago Tribune did a story on the possible execution of an innocent man in Texas. The article was written by Maurice Possley and Steve Mills. Certainly worth a read. Cameron Willingham was prosecuted for the murder of his three children after the home they rented in Corsicana, Texas went up in flames back in December of 1991. One of the key witnesses was a jail house snitch named Johnny Webb who testified that Willingham had confessed to him in the county jail. Webb also said that Willingham told him he had set the fire to cover up the physical abuse of the children by his wife. The children however, had no signs of physical abuse. That would seem to sink Mr. Webb's credibility.

In addition, the prosecutors used the testimony of Manuel Vasquez, a Texas state deputy fire marshall. At trial Vasquez testified that he had investigated 1200 to 1500 fires and ALL of them had been arson. He also testified he had NEVER been wrong. Every single fire he ever investigated arson? Not particularly likely, particularly when the Texas State Fire Marshall 1991 statistics listed arson as a cause in fires only 61% of the time. Basic math tells you that means back in 1991 4 of 10 fires in Texas were caused by something other than arson. Typically experts who reach the same conclusion 100% of the time are not viewed as particularly credible. And even more so when they are incapable of admitting a mistake.

In January of 2004, as the execution neared, a member of Willingham's family saw Gerald Hurst on television. Hurst is a Cambridge educated chemist who has made a career of investigating fires. He agreed to look into the case. In addition, Kendall Ryland, the Louisiana Fire Chief also looked into the case. Both men concluded that the fire was not arson. They considered 8 separate pieces of physical evidence used by the prosecution to convict. Their analysis demonstrated that the prosecution's interpretation of physical the evidence was simply inaccurate, based upon the current state of arson investigation techniques. Edward Cheever, one of the Texas state deputy fire marshalls who participated in the original investigation, acknowledged that the conclusions drawn by the prosecution regarding the physical evidence were not simply not accurate.

There was however, some non-technical, emotional evidence that may have helped convict the defendant. For example the day after this tragedy he apparently went through the debris looking for a dart board. And he gave a story where he made repeated attempts to rescue the children which weren't backed up by his physical injuries. And a chaplain who provided counselling apparently thought his grief wasn't very genuine. That testimony certainly didn't help the guy. But the fact remains that the scientific, objective evidence appeared to be flawed.

Finally, the article describes how Willingham, despite he findings of Hurst and Ryland, knew all along he wasn't going to get a reprieve. Reprieves don't happen in Texas.

Tuesday, December 07, 2004


The first lawsuits are now on file growing out of the brawl at Auburn Hills between the Indiana Pacers and the fans behind their bench. According to recent news reports, Mr. William Paulson has sued the Pacers, Ron Artest, Stephen Jackson and Jermaine O'Neal for the injuries he suffered after the trio opened up a can of whup ass on him. The injuries were not specified.
Speaking of the brawl, what precisely was that short, fat guy with the goatee thinking when he went on to the floor and engaged Artest? I think even Artest was confused by the guy - but not too confused to bludgeon the poor sap into submission with a couple of punches. That idiot deserved what he got. As Mike Ditka was quoted after decking a guy who had run out onto the football field during a Bears game: "That guy didn't belong out there".

And Mr. Republican Bruce Willis has filed one of those personal injury lawsuits the Republicans are always moaning about. He is claiming he suffered substantial mental and physical injuries in October of 2002 when he was struck in the forehead by a projectile while filming "Tears of the Sun". Well, that explains why the guy is always wearing hats.

And finally kudos to the the Justice Department for their dogged prosecution of that medical marijuana case in California. Federal agents apparently raided a private home in California to seize marijuana from a woman's home. The woman was suffering from cancer and had been given a prescription for the dope after trying some 30 other pain medications that didn't help. The Feds had a 3 hour stand off at the home because local law enforcement personnel tried to stop them, showing them documentation that the marijuana was for medical purposes. But the Feds wouldn't be dissuaded. They ultimately grabbed the stash and arrested the woman. The charges were ultimately dropped and the woman sued. I may be wrong, but I think she won at the trial level and the Feds appealed. What an enormous waste of tax dollars. Ashcroft, [or whoever approved this tragicomedy] should be ashamed of themselves. Terrorizing some poor sick woman who isn't selling the pot and only smokes it to ward off excruciating pain. These guys are starting to make Ken Starr look like the voice of reason.

Tuesday, November 23, 2004


The November 22, 2004 Chicago Sun Times contained an excellent editorial on the subject of capping damages. The editorial, a rebuttal to an earlier column in the Sun Times, was drafted by Daniel M. Kotin and Daniel S. Kirschner, two trial attorneys with Corboy & Demetrio. Their article raise several important points:

1) First, contrary to popular legend, the number of doctors in Illinois is not decreasing, but increasing. According to Illinois statistics, there are 9,000 more doctors in Illinois today than there were in 1994;
2) Physician flight from less populated areas is nothing new - it has been going on for some time and will likely continue even if caps are put in place. Doctors who practice in high risk areas are drawn to urban areas where they make more money;
3) Over the last several years jury awards have increased at approximately 6%(lower than the annual rate for medical inflation), while malpractice premiums have increased 66%. So where does all that money go if it isn't paying verdicts? Into the pockets of the folks who run the insurance companies. Consider that from 1995 to 2002 ISMIE, Illinois' largest medical malpractice insurer recorded a total profit of $25.1 million dollars. In 2003 ISMIE had a profit of $19.8 million, after raising doctor premiums 35%. And ISMIE was doing that to policy holders even though they paid out less money for malpractice awards in 2002 than they did in 1992. Wonder if the folks at ISMIE show those numbers to their policyholders?
4) The number of medical malpractice cases in Cook County is down approximately 24% from 2003.

In closing, the article points out that caps isn't going to reduce malpractice premiums and isn't going to bring back doctors who have left the state. The insurance industry is the house that needs cleaning.

Thursday, November 18, 2004


The Chicago Tribune reported today that House Republicans voted to change a rule they had enacted in 1993 in order to protect embattled Representative Tom DeLay, that tiny little former exterminator from Texas. The new rule was approved by a voice vote in a closed door meeting of House Republicans. In effect, it states that a party committee would review any felony indictment of a party leader to determine if was "politically motivated" before requiring the representative to step down. The old rule, enacted 11 years ago by the Republicans would require DeLay to give up his seat upon indictment. At least some of the Republicans were against the new rule, but the spineless majority prevailed.

DeLay has not yet been indicted, but several close associates have, and insiders in Congress think there is an indictment with DeLay's name on it. Ronnie Earle, a Democrat, is District Attorney in Davis County Texas and is investigating alleged campaign violations that allowed Republicans to win several Texas legislative seats in 2002. DeLay has been already been admonished twice by the house, once for asking FAA officials to track an airplane with Texas Democrats aboard during a 2003 redistricting battle. DeLay, in a stroke of master hypocrisy, said that Democrats were engaged in the politics of "personal destruction". The former exterminator was one of former President William Clinton's most savage critics and didn't hesitate to engage in the politics of personal destruction against Clinton. What goes on comes around little man.


Interesting lawsuit involving two celebrities out in LaLa land. Jim Belushi has filed a 4 million dollar lawsuit against Julie "Catwoman" Newmar accusing her of conducting a campaign of harassment to drive him from his Brentwood, California home. The lawsuit claims that Newmar has destroyed Belushi's property, made defamatory statements to neighbors and even spied on Belushi family get togethers. Belushi claims that Newmar's actions have caused him great emotional distress. No word from Newmar just yet. No real comment on this lawsuit, save to say that as a young boy who watched the original Batman growing up, Julie Newmar looked great in the Cat outfit.

And what the hell is going on with Liza Minnelli? Minnelli, who has already been accused of beating her estranged husband, David Gest, is now facing allegations that she also beat a former bodyguard. M'Hammed Soumayah, the singer's former guard, sued her last month, and alleged that she frequently beat him. Minelli, in response, has filed a countersuit, for breach of contract and breach of fiduciary duty. And I was so sure she and Gest would live happily ever after.

Tuesday, November 16, 2004


Once again guilty of not blogging for a number of weeks. No really good excuse, apart from poor planning...

Took the election results hard...particularly because I was foolish enough to buy into the "Exit Poll" data some of the blogs were showing. Zogby, at about 5:00 pm Chicago time had it a Kerry landslide, giving him 311 electoral votes. Not quite. And that electoral map is going to be tough to crack - lots of red and only a couple of islands of blue on the coasts and in the upper Midwest. Democrat in 2004? Best bet has to be Kerry. He hasn't ruled it out and has demonstrated an ability to raise funds. Will be interesting to see if Dean backs him.

And finally have to admit I did get a laugh watching Ann Coulter attempting to scamper away from those vicious liberals that threw pies at her. She looked like a stork having some sort of seizure. But enough about politics...


First and foremost, how about our man O'Reilly? I seem to remember him vowing to fight that sexual harassment suit even if it was his ruin. All that stuff about how they had picked the wrong guy to mess with...blah, blah, blah. Lo and behold, he pays a big chunk, and then cuts and runs. What about fighting the good fight O'Reilly? I guess he is quite capable of spin when he needs it.

And Scot Peterson convicted after a week plus of jury deliberation and two jurors getting tossed. Have to say, was pretty disappointed in Geragos' defense. He threw a number of scenarios out for public consumption both prior to trial and during the plaintiff's case in chief and then didn't come close to proving any of them. The defense "case" wasn't much of a case at all. And to this day still cannot figure out precisely what Gloria Allred does. And I wouldn't dare get between her and a television camera for fear of getting run over. Although she is currently only number 2 on the list of annoying women legal commentators. Number one with a bullet is Nancy Grace from Larry King's show. Never seen a defendant that isn't guilty and is incapable of objectivity.

Also saw an interesting case reported today in the Chicago Sun Times. A landlord in Lincoln, Nebraska is being sued by the Justice Department for demanding sex once a week from a female tenant in lieu of rent payments. The woman got him on tape and I quote: "Let's put it on the table...once a week sounds good". Under the circumstances, you have to wonder, what exactly did he want to put on the table? And his defense? His lawyer, Matthew McBride was quoted as saying: "There were no violent acts committed by Mr. Koch - that's important here." If you say so. Wouldn't bet the ranch on a not guilty there Matt.