The Trial Practice Tips Weblog

Rule 308: Interlocutory Appeals by Permission

Lawyers for both the plaintiff and defense should be aware of the implications for complex litigation of Illinois Rule 308, which allows for interlocutory appeals by permission. As a defense lawyer, I don't remember filing a Rule 308 motion, but lately, on the plaintiff's side, it seems I have had to defend a number of motions asking the trial court to allow the defendant to appeal an issue while the case in the trial court is still pending.

The fact that the defendant, in my experience, has never prevailed on the issue is probably because an interlocutory order is rarely suited to a Rule 308 appeal. According to Rule 308, in granting permission for an interlocutory appeal, the trial court must determine that the issue "involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."

A Guide to Auto Accident Cases

Featured yesterday, IllinoisProBono.org has also published a "A Guide to Car Accident Cases." It's very basic, but contains a useful introduction to uninsured and underinsured claims, as well as other tips that some might find helpful.

Defending a Tort Case: A Checklist

From IllinoisProBono.org at the Chicago-Kent College of Law comes "Tort Defense Outline," which is a nice little overview of a typical case from the defense point of view.

From the Don’t Kill the Messenger Department

I first read about Eliyon Technologies in the current issue of Business Week magazine. Longtime privacy advocates like me have to be wary when a company claims to be "the most comprehensive source of information on business professionals available"--but the lawyer in me wanted to check it out, and so I did.

From the Eliyon home page, you can reach "Eliyon Networking," which though touted as a free service limits users to a certain number of searches per day. I reached the limit in about ten minutes, then tried another computer on the same network--no luck, the website recognized me.

To test out the database, I first typed in the name of a drug company I know a lot about and instantly came up with some stuff I was interested to read. Searches of other companies, including law firms, yielded other interesting results.

Give the site a try as a tool to be used for informal discovery. Just be sure to take the information the database spits out with a grain of salt: a search of the Sonnenschein law firm gave me six pages of names and titles, but listed one lawyer as a "pro bono partner" and another as a "law dictionary."

No one, I'm sorry to say, would ever say either of those things about me.

Instructions: Aggravation of Pre-Existing Injury

According to Illinois Pattern Instruction (IPI) 30.03, the "aggravation of any pre-existing ailment or condition" is a separable element of compensable damages under Illinois law. However, as the comment to IPI 30.03 notes, the First District disagrees about this, as evidenced by Smith v. City of Evanston, 260 Ill.App.3d 925, 631 N.E.2d 1269, 197 Ill.Dec. 810 (1st Dist. 1994).

In Luye v. Schopper, No. 1-02-0610 (1st Dist. 2004), the First District reconsidered the Smith holding and reaffirmed it, stating that IPI 30.03 misstates the law and should not be used:

In Smith, the appellate court determined aggravation of a preexisting condition did not constitute a separate element of damages because it would overcompensate plaintiffs due to the overlap of aggravation of a preexisting injury with awards for other elements of damages. Smith, 260 Ill. App. 3d at 935-36. The Smith court held that although the aggravation of a preexisting injury should be taken into account in awarding damages, it was error for the trial court to give the jury an instruction and itemized verdict form with aggravation of a preexisting condition as a separate element of damages. Smith, 260 Ill. App. 3d at 935.

IPI 30.03 remains viable in some other districts; be sure to conduct your own research before using this instruction (or objecting to its use).

More About Cross-Examination

Many readers come to this weblog searching for information about cross-examination. So here's some more: "The Ten Commandments of Cross-Examination," by Timothy Pratt. It's written by a defense attorney from Shook, Hardy & Bacon and resides on the website of The Federation of Defense & Corporate Counsel. It begins like this:

Much has been written about the “art” of cross-examination. Not all of it, though, involves art. Some of it involves natural talent, but most of it involves hard work. In truth, three factors combine to create this “artistic” success -- personality, presence and persuasion. These traits are often manifest in the ability to think and react quickly. But something else is involved as well -- something that trial lawyers often hold in short capacity. That something is humility, and the ability to know when to quit. The art of cross-examination involves all of these traits, and more than a little luck.

Among other things, the author suggests that the preparation for an expert's cross-examination should include a close reading of the expert's website, if any. I concur that this will often turn up all kinds of good things to use against the expert.

The Greatest Trial Objection Ever

It's called the "Groundhog Day Objection," and it comes in the form of an anecdote from Ernie the Attorney. Check it out!

What That Expert Might Be Thinking

Do you want to know how that expert you are about to face might have prepared for your killer cross-examination? Take a look at "Advice for Experts Facing Cross-Examination," by Steve Babitsky and James Mangraviti, Jr. Here's a sample:

You are well advised to avoid, where possible, absolute words such as "always" and "never." Absolute words are frequently an invitation to, and fertile grounds for, cross-examination by counsel. Counsel will attempt to damage your credibility by first getting you to make an absolute statement. She will then use counterexamples in an effort to show the falsity of your statement.

Using Technology to Enhance Cross-Examination

It's written by a Canadian lawyer, but may give you some ideas anyway. See "Using Technology in Cross-Examination and Argument," by Michael Fraleigh.

Chiropractors and Depositions

"A Few Common Cross-Examination Questions," by Arthur C. Croft, is written by a chiropractor for an audience of other chiropractors. Its theme: Don't let the lawyer trip you up. The article might have value for both plaintiffs' lawyers and defense lawyers.