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.

SEVERANCE PROPOSALS

by David McCarthy

Severance proposals have two things in common.

First, no two are the same with respect to the number of months of pay offered. There simply is no hard-and-fast rule about this.

Second, they are all the same (or appear to be) with respect to their negotiability: They are take it or leave it. The thinking is that modification of one proposal will inevitably lead to modification of all proposals.

Living Trust or Probate

by David McCarthy

The "living trust" has been pitched as a new alternative to probate. It is neither one. It has been around for hundreds of years. It is not an alternative to probate.

As a probate avoidance tool, the living trust is only as good as the settlor's ability to make sure that all his/her property gets into the trust.


The settlor is the person who sets up a trust.

As time goes by the settlor acquires other property, e.g., by purchase, by inheritance, or by transfer or exchange of trust property. However, the settlor neglects to put the newly-acquired property into the trust. Unless that property is otherwise disposed of during the lifetime of the settlor, it will become part of the settlor's probate estate. Having a living trust in addition to a will makes sense. Having one in lieu of a will does not.

Doing Business Without a Well Drawn Contract

by David McCarthy

Many are the stories of successful businesses that began with a contract drawn on a cocktail napkin. Contracts don't much matter when everything is going well.

Contracts matter when things go wrong.

One of our clients is now in litigation over a bare bones contract made with a rascal and without the benefit of counsel. The decision to save on expenses on the front end by skipping the lawyers and banging out a crude one-page agreement with the other party has proven to be a false economy.

Dying Without a Will

By David McCarthy

When someone dies without a will, the State does not take all the property; but the State does draw a will, so to speak. The way the State-drawn will disposes of the property may be at odds with the way the deceased would have done so had he/she made a will.

The state-drawn will in Illinois is known as "Rules of descent and distribution." (755 ILCS 5/2-1). It provides, among other things, that when there is a surviving spouse and descendants (e.g., children), the surviving spouse gets one-half and the descendants one-half.

One would suppose that in most cases when there is a surviving spouse and descendants, a will would give all to the surviving spouse.

At-Will Employment Rule

by David McCarthy

A young man walked in off the street the other day and provided living proof that for all its simplicity, the at-will employment rule is tough to grasp.

An employer to whom he had given three weeks' notice of his intention to quit told him to leave at once.

"Can they do that?" he asked.

Of course.

The point of giving prior notice is to allow the employer to adapt to the change. It does not alter the at-will nature of the relationship.

New Illinois Laws

Employee Credit Privacy Act -- Effective January 1, 2011. Prohibits Illinois employers from discriminating based on a job seeker or employee's credit history. The new law will remove a significant barrier to employment for the growing segment of the population whose credit history has been affected by the recession. The law forbids employers from inquiring about an applicant or employee's credit history or obtaining a copy of their credit report. The law does not affect an employer's ability to conduct a thorough background investigation that does not contain a credit history or report. Employers who violate the new law can be subject to civil liability for damages or injunctive relief.

Illinois Small Business Tax Credit -- Small businesses that create new jobs between July 1, 2010 and June 30, 2011 may be able to take advantage of a $2,500 tax credit for new hires. The Illinois Small Business Job Creation Tax Credit, signed into law earlier this year, targets the foundation of Illinois' economy - the 500,000 small businesses across the state.

Debt Settlement Consumer Protection Act -- Effective immediately. Establishes stringent guidelines and enhances consumer protections for Illinois families seeking help to pay overdue bills.

The Intolerable Co-Worker

by David McCarthy

We get a remarkable number of calls from persons who have inflated notions of "hostile environment harassment." Usually the caller is new to the job in question and the complaint is that a co-worker is curt, abrupt, abrasive, indifferent, quarrelsome, and on and on. Eventually the term "hostile environment" enters the conversation. Invariably the caller displays an unduly broad (and erroneous) notion of "hostile environment harassment."

It began 24 years ago when the U.S. Supreme Court expanded to scope of gender-based harassment from the so-called quid pro quo variety to the "hostile environment" variety. In order for the "hostile environment" to be actionable it must have the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment and it must be connected to one of the forms of discrimination that is prohibited, e.g., race, sex, national origin, age, disability.

Quite recently a caller who had been let go after fewer than 60 days on the job had just received from EEOC (Equal Employment Opportunity Commission) her right to sue letter and a notice that, after investigation, EEOC was unable to conclude that the caller had been the victim of workplace discrimination. She brought her charges on a theory of race-based discrimination, and it soon became clear why: Both of the "villains" in her story were women. One was a supervisor and the chief complaint as to her was that she refused to take sides in an ongoing, low-grade clash between the caller and a co-worker with whom the caller did not get along.

From what was described to me, I concluded that the conduct complained of did not rise beyond a clash of personalities. Apparently EEOC had reached much the same conclusion after a long investigation. The caller was free to go to the next step, that is, file suit; but the wisdom of doing so in light of the tepid conclusions of the achingly-sensitive EEOC was far from clear.

Can Blogging Get You Fired?

by David McCarthy

Can blogging about your job or your boss get you fired?

Absolutely.

Illinois is an at-will State. Either party to the employment relationship can end it at any time for any reason.

By and by exceptions have emerged as to the right of the employer to end the employment relationship. To fire someone after she has complained of discrimination because of race, sex, age, or disability is to run the risk of liability for "retaliatory discharge."

As for blogging about the job or the boss, it is tempting to suppose that the constitutional guarantees of free speech diminish or eliminate the right of the employer to fire the blogger. But it is not so.

First, the constitutions regulate only the relationships between individuals and the national and state governments, not the relationships between individuals and private employers.

Second, the Illinois Supreme Court has expressly rejected the proposition that a claim for retaliatory discharge can be grounded on free speech. There is an exception when the free speech is of the "whistleblower" variety.

Otherwise, you can blog to your heart's content and no judge will prohibit it. But you take what comes, and if a "pink slip" is what comes, you might as well put all your attention on looking for a new job because you are going nowhere with a claim of retaliatory discharge.

Counties with Personalities: It Matters Where You File

by David McCarthy

The conventional wisdom as to personal injury cases in Chicagoland is that plaintiffs want to avoid DuPage and get into Cook County whenever possible and defendants want to avoid Cook County and get into DuPage County.

The conventional wisdom has it that the jury pools in DuPage County are conservative and will demand that a plaintiff prove her case, and particularly establish that the damages she requests of the jury are fully justified. On the other hand, the thinking as to jury pools in Cook County is that they start with the premise, "We've got to give this poor plaintiff something" and the only question is how much?

We speak specifically about DuPage County because it is widely regarded as the most conservative of the 102 counties in the State. Cook County is considered among the most liberal, along with Madison and St. Claire Counties over on the Mississippi River.
 
The above discussion might suggest that a plaintiff can file a lawsuit anywhere she wants to. Not true.

The general rule is that the suit must be filed in the county where the defendant resides or where some part of the transaction took place. A corporation "resides" in any county in which it has an office or regularly transacts business. Out-of-state defendants can be sued in any Illinois county.

Great Strides Fundraiser

Thanks to everyone who contributed to the cystic fibrosis Great Strides annual walk today.

 "Team McLenighan" raised over $400.00!

David and Pat McCarthy

More About the Work-At-Will Rule

Illinois is a work-at-will state. My advice to prospective clients who have just lost their jobs invariably begins with the proposition that the employment relationship is terminable at will by either party (employer or employee) at any time for any reason or for no reason.

Virtually all the action in employment law over the last 40 years has been in the development of exceptions to the general rule that the employer can terminate the employment relationship whenever it wants to.

Quite recently we received a query from an individual who had lost his long-time job with a national retailer after he was late reporting back to work from a trip overseas that was unrelated to his employment.

He had developed quite a good case to show that he had a good excuse for not getting back to work on time. But he was unable to identify any situation, circumstance or event which - in his case - diminished or eliminated the right of his employer to terminate the employment relationship.

Even if he had reported back to work exactly when and where required, his employer was nevertheless free to terminate the relationship. There are indeed situations in which an employer’s decision to end the employment relationship can fairly be challenged (e.g. discrimination on the basis of age, race, sex, disability).

In the case under discussion here, there was the faintest hint of discrimination on the basis of national origin, but my invitation to him to tell me more about that point went unaccepted.

All this presupposes that the employee does not have a contract for a specified period of time. If the employee does have a contract for employment for a specified period of time and the employer terminates the employement relationship before the period has expired, the termination may be (and often is) actionable on a basic, common law breach-of-contract theory.

DO I HAVE A RIGHT TO REVIEW MY PERSONNEL FILE?

By David McCarthy

Yes.
Current employees and some former employees are entitled to see their personnel file and to make a copy of it by authority of the Personnel Records Review Act, 820 ILCS 40/0.01 et seq. The question is often put by someone who has just been fired, and the right of access survives for one year following termination of the employment relationship.)

In general the employer must produce the file within seven working days of receiving a request therefor, and may not charge more for copies than the actual cost of the copies. Small employers (fewer than five employees) are not bound by the statute, and the statute does not require an employer of any size to maintain personnel records.

There is a right to correct the record.

It hardly needs saying that when the employer and the employee concur that the record is erroneous, it can be corrected by removal of the offending material, or otherwise, as they mutually agree.

What if they disagree?

In that instance, the employee is entitled to submit a written statement of his or her position, which must be attached to that part of the record it takes issue with, and any time the disputed portion is produced to a third party, the employee's position paper must be produced as well.

Records pertaining to disciplinary action may not as a rule be produced to third parties unless the employee has been notified. The employer must examine the file before producing it to third parties and must in most instances delete information about disciplinary matters that are more than four years old.

Do you get to see everything?

No.

Letters of reference are not subject to production. The same is true for personal information about someone other than the employee in question and for records pertinent to a criminal investigation.

BAILEY HOBSON HOUSE

This rather glum-looking gentleman was an early pioneer settler of Naperville and is frequently called the "Founding Father of DuPage County."

Bailey Hobson and I have something in common.

The old stone building in front of my office was built between 1845 and 1847 as the home for this man's son, John Hobson. I have called the structure behind the old stone building my home away from home for the best part of 20 years. The Hobsons resided in the building somewhere around 49 years.

Besides the Hobsons, various colorful occupants have lived in the old building over the years. From 1894 to 1910 it was used to board both horses and their trainers. Gambling was a favorite past time of the trainers and sometimes there were differences of opinion. The bullet holes found in the original front door are thought to date from this time.

In 1979 the Law Offices of Cellucci and Yacobellis purchased the old stone building and under their ownership the building has flourished. I'm happy to report that although there have been quite a few heated discussions in the building, no additional shots have been fired since the horses and trainers vacated the premises.

In 1988 a red brick addition was built behind the stone house creating an attractive space for professional offices. Next time you're in the office check out the interior design. The fireplace, staircase, doors, bookcases, and moldings were removed from a monastery in Oconomowoc, Wisconsin and masterfully installed throughout the addition.

I'm just speculating, but I think Bailey Hobson would be impressed.

A LITTLE LEARNING IS A DANGEROUS THING

by David McCarthy

There is a saying in Texas: You can’t fix stupid. Is it true? We’ll report. You decide.

At the request of an on-again, off-again client we recently made contact with a distant relative of hers who had been named a respondent to a petition for an order of protection.

Orders of protection are available under the Illinois Domestic Violence Act of 1986, and they can be used to obtain all sorts of relief, from a “stay-away” order to exclusive possession of a house or apartment to custody of a child to an order on the respondent to undergo counseling. In the case at hand a long-time adversary was asking the court for a “stay-away” order on grounds that the respondent was guilty of stalking.

The conversation took place at three o’clock on a Wednesday afternoon. The case was going to be up in court the next morning. The respondent had been served with the court papers a month before and had, in fact, gone to court some weeks earlier to get the matter continued to the date in question.

Why, then, did she wait until late on the afternoon prior to the hearing to think about hiring an attorney? She inferred from the fact that she had spent some time in the employ of a law office that she was fully capable of defending herself, and she continued to think so until there arrived, in that day’s mail, notice that the petitioner had a dozen witnesses under subpoena.

At that point the respondent prevailed upon a family member to front the legal expense, but just as she had overestimated her abilities to defend herself, so, too, she grossly underestimated the expense associated with a hearing at which the opposition proposed to submit testimony from 12 witnesses.

Next, the respondent drew upon her law office experience to conclude that she could defend the case on the grounds that some of the witnesses under subpoena had not received the per diem and mileage fees required by statute. That objection was available only to a witness under subpoena, not to the respondent, and it did not provide her with a defense of any sort.

Finally, for all the importance the respondent placed upon having once worked in a law office, the experience had not enabled her to identify her best defense. The petitioner was not within the class of persons eligible to seek an order of protection against the respondent.

A little learning is a dangerous thing, said Alexander Pope.

The law office experience of the respondent in the foregoing case worked against her, not for her. She overestimated her abilities, underestimated the expense, and mis-identifed her defense.