The Pendulum Swings

by David McCarthy

Oliver Wendell Holmes
told us that the life of the law is not logic but experience.

Many years ago, when your correspondent was a newspaper reporter, elderly residents in the suburbs north of Chicago were prey to a home remodeling scheme that would start with an offer of a free inspection of the chimney of a house. Invariably a few bricks would be kicked loose. Then the ever-so-earnest contractor would report this disturbing find to the homeowner, collect a substantial advance to make the repairs, and vanish into the hills of Tennessee. That practice and others that gave home remodelers a bad name led to enactment of the Home Repair and Remodeling Act, yet another example of the law of unintended consequences.

The statute requires contracts in writing for repairs in excess of $1,000.00 and delivery of pamphlets full of warnings to the homeowner/ customer and details about their rights. Naturally, this reversed the dynamic, and with the help of case law, unscrupulous homeowners preyed upon contractors, obtaining lavish improvements to their homes and then stiffing the contractors on the grounds that the contract was unwritten or the pamphlet had not been delivered.

The pendulum recently started to swing back to equilibrium owing to an especially outrageous example of overreaching and some common sense in the Illinois General Assembly and the Illinois Supreme Court. A married couple hired a friend to convert a three-flat into a single-family home. The contract was unwritten, and it escalated from $187,000.00 to $500,000.00 as they added ever more improvements, refinements, and upgrades. They paid the first $65,000.00 but refused to pay a penny more till all the work was done. The contractor went in hock and borrowed $150,000.00 to finish the job. Did he do the work and do it right? You bet. Apart from a quibble over a $300.00 repair of flooring the homeowners approved all the work and then stiffed the contractor for more than $300,000.00.

The contractor sued the homeowners. They obtained dismissal of all counts in the trial court on the grounds that the statute had been violated. The appellate court saved one count that allowed the contractor to sue for the reasonable value of his services. The case reached the Illinois Supreme Court, and there all three counts of the contractor's claim were upheld, not least because of an amendment to the statute. A clause that declared it "unlawful" to make more than $1,000.00 in home repairs without a written contract was replaced by a clause which allowed a homeowner damaged by a violation of the statute to sue under the consumer fraud act.

The upshot: A couple of cherry pickers who thought that $65,000.00 and a lost friendship was a small price to pay for a $500,000.00 house got their comeuppance. There is no joy in saying this: One of the homeowners was an attorney with a practice in real estate.

Red Light Camera

by David McCarthy

Picture this: You have received a ticket in the mail for running a red light at a "photo-enforced" intersection. For a change, you were actually the driver of the car and not just its owner, And you have decided to fight the ticket. So, what next?

One, you go to court on the date recited on the ticket or on the notice that follows the ticket. You will not go to trial that day. Even in the unlikely event that "the State" (or the City) is prepared to answer "ready" for trial, you will not answer "ready." The case will be continued for trial to a "date certain."

Two, on the date for trial you will approach the prosecutor and ask what he/she intends to do that day. Odds are you will be asked to stipulate to the facts. This invitation requires a non-committal response, e.g., a smile and a nod. By and by the case will be called on for trial. The prosecutor, having no undeniable proof of an agreement as to the facts, may solicit a stipulation to them in the presence and hearing of the judge.

Whereupon you will say, no, and that you want to cross examine the technician who maintains the camera. The state will move for a continuance. You will object and move for an order dismissing the case for want of prosecution. The state will move for a "nolle prosequi" and that will be the order. (The state will have the right to reinstate the charges. The chance of that happening is all but nil.)

Did you know... ILLINOIS COUNTY NAMES

Cook County-- Named for Daniel P. Cook, a pioneer lawyer, first Attorney General of the State of Illinois and Representative in Congress from 1819 until his death in 1827.

DuPage County -- The county took its name from the DuPage River, which was, in turn, named after a French fur trapper, DuPahze.

Will County -- Named for Dr. Conrad Will, a businessman involved in salt production in southern Illinois, and also a politician. Will was a member of the first Illinois Constitutional Convention and a member of the Illinois Legislature until his death in 1835.

Kane County -- Named for Elias Kent Kane, an attorney who helped draft the Illinois constitution and was the first Secretary of State. Kane was later elected to Congress and represented Illinois in the U.S. Senate until his death in 1835.

Further reading at Origin of County Names Illinois Blue Book, 2009-2010.

NAME CHANGE

By David McCarthy

The story is told of a certain Raymond Nusspickle who did not like his name. So he changed it. To Henry Nusspickle.

To do that in Illinois - change your name - it is necessary to reside in the state for six months, file a petition in the state court and publish notice in a local newspaper.

The petition must be signed, verified, and filed in the state court in the county of residence. The notice must be published three weeks in a row, and the first publication must occur at least six weeks before the petition is presented to the judge in open court.

The same petition can be used to change the name not only of the petitioner but also of the spouse and adult children of the petitioner (with their consent, of course) and minor children (if the change is in the best interest of the minors).

The disqualifying factors are what you would expect them to be, e.g., conviction for sexual abuse of a minor, for identity theft, or for any felony that is recent and unpardoned.

New Illinois Laws

One hundred ninety-four new laws go into effect in Illinois on January 1, 2011. A partial list follows:

Credit History Discrimination: Employers will no longer be able to request credit reports as part of the hiring process nor can they ask about an applicant's credit history in the interview.

Red Light Cameras: All red-light violations will now be reviewed by a police officer, a retired police officer or technician not employed by the company that runs the cameras. An image of the violation must be made available on the Internet, and any municipality or county that uses red light cameras must provide notice to the public by posting the locations of the cameras on their official web site. Finally, a safety impact study must be undertaken to assess the number of accidents at the red light camera monitored intersections.

Unpaid wages: Workers are now allowed to go straight to court to collect their wages plus any legal fees when employers don't pay.

Adoption: Adopted adults no longer need a court order to obtain their birth certificates.

Pet disclosure: Pet stores must inform potential buyers about an animal's health history and the name of the breeder as well as other details.

Commercial Vehicles: Increases the fine to no less than $500 for commercial trucks that fail to display the name of the company on the side of the vehicle.

Fake dope: Outlaws the sale of "Spice" or "K2," a material similar to synthetic marijuana.

Sexting: Teens under 18 face stiffer penalties if they are caught distributing lewd photographs using their cell phones or computers.

Car seats: The fine increases to $75 from $50, for not properly strapping a child into a car seat.

Belt-in passenger: Drivers must adjust and fasten a passenger's safety belt if the passenger is unable to do it.

Bike safety: A new law makes it illegal to "crowd" or threaten a bicyclist by unnecessarily driving a car or truck too close to a bicyclist.

Presidential primary: The date of the presidential primary election moves to the third Tuesday in March in even-numbered years.

HAPPY NEW YEAR!

Ring out the old, ring in the new,
Ring, happy bells, across the snow:

The year is going, let him go;
Ring out the false, ring in the true.

~Alfred, Lord Tennyson, 1850

MORE ABOUT AVOIDING PROBATE

by David McCarthy

We recently spoke about an effective (but imperfect) tool for avoiding probate: the living trust. Some elaboration about the subject, probate avoidance, might be of interest.

Probate is not the ordeal it is widely supposed to be, and its hellish reputation is a triumph of the advertising of the living trust industry over reality.

One of the claimed advantages of the living trust over probate is privacy. The living trust "community" cited for this point the estate of a deceased celebrity (if memory serves, the celebrity was either Bing Crosby or Natalie Wood). In any case, the estate was probated. In the course of that proceeding an inventory of the property of the departed was required by law to be filed of record. And the gawkers of Southern California were at liberty to pull the file and see all that the deceased owned.

The risk of that is diminished if not eliminated in Illinois by the availability of "independent administration." Virtually any estate that must be probated in Illinois is eligible for "independent administration." "Independent administration" eliminates the privacy objection touted by the proponents of the living trust: The inventory of the property of the deceased need not be filed of record in an "independent administration."

Let us now turn to that most basic and obvious of probate avoidance devices: the will. True, the existence of a will does not, strictly speaking, enable one to "avoid" probate. It can and does, however, manage and control a number of risks that give probate a bad name.

The greatest advantage of a will is surpassingly simple: It distributes the property of the deceased in the way that the deceased intended the property to be distributed.
 
When a person dies intestate (that is, without a will), the property is distributed in the way that the State dictates pursuant to the statute of descent and distribution. Those intentions -- the intentions of the deceased and the intentions of the statute of descent and distribution -- are not necessarily one and the same. Another advantage of a will, especially as to estates of some consequence, is that it can call for no surety on the bond of the executor. Surety bonds can get expensive.

There are other devices that can streamline and simplify probate, or avoid probate altogether. Holding property in "joint tenancy" is one such device. Property held in "joint tenancy" does not pass into the probate estate of a joint tenant so long as one other tenant is still alive. Rather joint tenancy property passes, upon the death of one joint tenant, to the co-tenants who survive. Another handy device is for the testator (the person who makes a will) to purchase a modest policy of insurance on his/her life and designate as the beneficiary thereof his/her estate. The proceeds of the policy payable upon the death of the person whose life is insured will pass into his/her estate and provide liquidity to pay expenses.

Probate differs in no important way from any of the other business and affairs of life that end up in court.

There is a direct correlation between the time, expense, uncertainty and hard feelings and the level of contest. When all disputes between the parties in interest are resolved by agreement, the cost (in all senses of the word "costs") is low. When all disputes between the parties in interest are resolved by the court, the costs are high. In most cases, we see a bit of both, that is, a mix of disputes resolved by agreement, and disputes resolved by order of court. And over time, in any given case, the amount of business resolved by agreement rises and the amount of business resolved by the court falls, because the parties in interest feel ever more acutely the pain of having to pay the lawyers.