Bits N Briefs

Thank God, America

Abraham Lincoln’s Proclamation 

If you listen to TALK RADIO, you’re likely to hear a lot of heated debate and opinions about What’s Wrong with America:  Loss of civility, racial divide, guns, crime, taxes, drugs, gangs, poverty, ignorance, unemployment, climate change, pollution, undocumented immigrants, the 1% and more.

One could easily fall into depression and despair, thinking about personal hardships, the world economy and bitter divisions in our country.  But think about the state of our country in October, 1863 – the middle of the Civil War.  In the midst of a bloody conflict that would leave 600,000 Americans dead, more than all other American wars combined, Abraham Lincoln issued the Proclamation of Thanksgiving.

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Old Memories as New Evidence

How Reliable are Old Memories of Sexual Abuse?

In a few days, a woman may testify before the U.S. Congress about her recollection of an attempted sexual assault, allegedly committed 36 years ago by a then intoxicated 17-year old high school student, who is the current nominee for a lifetime appointment as Justice of the United States Supreme Court.

How reliable will her testimony be?  Many articles can be found on the internet supporting the validity of recovered memories of childhood sexual abuse, which were previously repressed.  Lawmakers have accepted this view and expanded statutes of limitations in both criminal and civil cases to allow victims an opportunity to present their evidence and seek justice for physical and emotional injuries, even those occurring long ago.  This is an exception to the general purpose of statutes of limitation, which put limits on the time period to pursue claims, recognizing that after the passage of time, memories may fade, witnesses may be lost, and discovering the truth is more difficult.

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Bloomingdale Chamber Member of the Month – Martucci Law

Martucci Law - BCC Member

35 Years of Criminal, DUI, Juvenile Defense

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What is Attorney-Client Privilege?

Legal consultation attorney client privilege

When Does It Not Apply?

With the recent news of the FBI raiding the home and office of President Trump’s personal attorney, Michael Cohen, and President Trump tweeting that the “Attorney-client privilege is dead!,”people are asking “What is Attorney-Client Privilege?”

Generally, attorney-client privilege protects confidential communications between a lawyer and client from disclosure to others.  The law recognizes that the administration of justice is furthered when clients are encouraged to make full and frank disclosures to their lawyers so that lawyers may provide sound and informed legal advice, and represent the client as effectively as possible.

There are certain essential elements that must be proven before attorney-client privilege can be claimed:

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Do You Swear To Tell The Truth?

Legal help for swearing to tell the truth

Witness Testimony Under Oath

We’ve all seen, in person or on T.V., the witness with his hand on the bible or right hand raised, swearing to tell “the truth, the whole truth and nothing but the truth, so help you God.” By taking an oath, or affirmation, the witness is implicitly inviting punishment from God if the statement is untrue. But even if the witness doesn’t believe in God, the legal consequence of taking an oath is to subject the witness to penalties for perjury if the statement is false. Such severe consequences should force people to tell the truth. Does that mean that witnesses, under oath, always tell the truth? Unfortunately, the answer is NO.

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Law & Justice in the Movies

Law and justice movies

Christmas 2017

December is a busy time of year!  It is also a joyous time of year for those anticipating Christmas and other holidays.  At the end of a cold winter’s day, what can be more enjoyable than settling down on a sofa, hot cocoa in hand, warm stockinged feet facing a toasty fireplace and clicking on one of the classic Christmas movies: It’s a Wonderful Life (1946), Miracle on 34th Street (1947), A Christmas Story (1983), or A Charlie Brown Christmas (1965)?

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So You Want to Sue Someone

Gavel and Books in Courtroom

The Quest to Right a Wrong

Maybe someone ripped you off and you lost money, maybe even your life savings. You feel cheated, violated, hurt, afraid for your future and angry. You want your money back!

Maybe a distracted driver on a cell phone plowed into your car and you were seriously injured. The car can be fixed or replaced, but not so easily your body. You’re in pain, broken, traumatized, fearful and changed. Your life has been turned upside down and you can’t do normal daily activities like dressing, bathing, cleaning, carrying groceries or your child, without pain. Nor can you do the fun activities you used to enjoy doing. You may have lost income, become disabled and suffered. You want your old life back. But if that’s not possible, you want someone to pay for their negligence!

These are some common reasons why people file civil lawsuits. You can’t rewind the clock or undo what’s been done, but you can seek justice. And if you have to file a lawsuit and take someone to court, the justice you seek is usually money.

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When the Courts Were Corrupt

Operation Greylord book cover

Operation Greylord  

Terrence Hake, a former Cook County State’s Attorney turned F.B.I. agent, tells the true story about his fascinating yet dangerous undercover work, posing as a crooked prosecutor turned crooked defense attorney, bribing crooked court clerks and judges, to fix cases and catch them on tape.  In the pursuit of justice, he is forced to befriend and betray corrupt and powerful people, some of them armed, while wearing a wire and ultimately testifying against them in a new book titled Operation Greylord.

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Defending the Guilty

Lawyer with a notebook

Protecting Our Constitutional Rights

“How can you defend someone who you know is guilty?”

That’s a question every criminal defense lawyer has heard.

The best answer is that when we defend the rights of the guilty, we protect the rights of the innocent. That includes our own rights.

Most lawyers will cite our legal system’s “presumption of innocence” meaning that in the eyes of the law, the defendant starts out “innocent” and is not required to prove his innocence. He doesn’t even need to testify at trial. Instead, the government prosecutor is required to prove a defendant “guilty beyond a reasonable doubt.”

While these legal propositions, also called “the burden of proof” may allow some truly guilty defendants go free, even get away with murder, they reduce the chances that an innocent person will be convicted of a crime and sent to jail or prison.

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Getting Legal to Drive After a DUI

young woman with hands on eyes sitting depressed in car

The Road to Reinstatement Starts with an RDP

The DUI Laws in Illinois are tough. Over the years, the breath or blood alcohol concentration (BAC) to find someone legally under the influence of alcohol has been reduced from .10 to .08; the availability of the sentence of “court supervision” to avoid a conviction, and loss of one’s driver’s license, has been limited to once in a lifetime; former misdemeanors have been enhanced to felonies and jail sentences have become prison sentences.

But even a DUI conviction, revocation of their driver’s license and loss of driving privileges will not stop some people from continuing to drive. In most cases, people drive not to defy the law, but to get to work or school, get their kids to daycare or after-school activities, take elderly parents to the doctor, buy groceries and support their families.

The harsh consequence of driving after a DUI conviction is usually a mandatory jail sentence or hundreds of hours of community service. Repeat offenders are often charged with felonies and third-time offenders can be charged with a Class 1 felony, punishable by 4 – 15 years in prison and a fine up to $25,000, with no possibility of probation.

My advice to people whose driver’s licenses have been revoked following a conviction for DUI – Don’t Drive until you get Legal to Drive!

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Why Are Creditors Still Calling After Bankruptcy?

Man on phone, angry because of bankruptcy

How can you stop abuse by creditors?

When a Debtor files a Bankruptcy Petition, the ultimate goal is to obtain a Court Order called Discharge of Debtor. This may take only a few months under a Chapter 7 “no asset” case or up to five years in a Chapter 13 repayment case.

But except for certain non-dischargeable debts, the Discharge of Debtor “operates as an injunction against the commencement of continuation of . . . an act to collect, recover or offset any such debt as a personal liability of the debtor.”

Unfortunately, some creditors, out of ignorance or spite, ignore the discharge injunction and continue collection activities, including calling, harassing, suing, or attempting to garnish wages or bank accounts of the debtor, or even seize property of the discharged debtor.

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Do I Need A Lawyer for a Speeding Ticket?

Young woman pulled over by traffic cop

Do I Need A Lawyer for a Speeding Ticket?

ANSWER: It depends – on a lot of things. What is your age? What is your driving history? Do you have any convictions on your record? Are you currently on Court Supervision or Probation? Was your driver’s license valid or expired or suspended or revoked? Was there an outstanding warrant for your arrest? How fast were you charged with driving? Are you contesting the speed? Was there an accident? Did you have insurance? Were you charged with fleeing and eluding? Did you cooperate with the officer? Did you consent to a search? Was any contraband found in the car? What other charges were filed along with the speeding ticket? Do you have a C.D.L.? Will one more conviction lead to a suspension of your driving privileges? Are you a U.S. citizen? All of these factors can have significant impact on your eligibility for a leniency, the seriousness of the sentence imposed if found guilty, and the ultimate strategy for your defense.

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Life After Bankruptcy

Feelings of freedom after bankruptcy

In my 30-plus years of practice, I’ve helped thousands of people through bankruptcy. In most cases, the bankruptcy filers (debtors) have accomplished their goals – stopping collection activities (calls, letters, judgments, garnishments), obtaining forgiveness (discharge) of debts, and protecting their assets (up to applicable exemption limits). Although some debts are not dischargeable (including domestic support obligations, recent tax liabilities, student loans and intoxicated driving liability), there are some tips you can follow after earning a fresh start to rebuild your credit and begin life after bankruptcy.

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5 Things to Consider Before Filing for Bankruptcy

Bankruptcy court gavel

1. How did I get into this mess?

People considering bankruptcy are dealing with an unmanageable amount of debt. Although a bankruptcy may eliminate the debt, it’s important to understand the reason or reasons for the debt to avoid repeating the same problems in the future. Was the debt a result of a job loss, divorce, vehicle repossession, mortgage foreclosure, a failed business, student loans, overuse of credit cards, high-interest loans, gambling or catastrophic medical bills? Had the financial stress boiled over as a result of an eviction, sheriff’s sale, garnishment or seizure of assets? Some of these problems are beyond your control – others may be avoided with better financial management skills. The mandatory credit counseling and personal financial management classes, required of all individuals filing a bankruptcy case, help debtors develop these skills for starting over after bankruptcy.

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What to Look For in a DUI Attorney

Gavel resting over legal textbook

If you’ve been charged in Illinois with DUI (Driving Under the Influence of Alcohol/Drugs/Intoxicating Compounds), you are in serious trouble. If convicted, you are facing the loss of your driver’s license or driving privileges, possible incarceration in the county jail or state prison, and substantial fines, court costs and hours of counseling. Even if jail can be avoided, you may not be able to drive your car without having an expensive Breath Alcohol Ignition Interlock Device (BAIID) installed in your vehicle before you can drive it.

For these reasons, it is imperative that you have a very good attorney on your side to represent you and counsel you in your upcoming court proceedings. Whether you are looking for your attorney to challenge the 6-month or longer statutory summary suspension, negotiate a favorable plea agreement, file motions to quash the arrest or suppress evidence, or contest the charges in a bench or jury trial, there are critical things to look for when you hire a DUI attorney:

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Beware of Errant Golf Shots!

Legal help for golf injury

Victims May Not Be Able to Recover if Injured 

Spring weather brings out the golfers and start of the season of Golf Outings.  Taking a good swing, making good contact and sending a straight shot that lands where you wanted the ball to land is a great feeling and great fun.  But, more often for some than others, the ball may hook or slice off to the side, maybe onto another fairway.  If you are really unlucky, the ball might even strike and injure another person.

Golf Digest reports that some 40,000 people are admitted to emergency rooms every year with head injuries caused by errant golf balls and flying club heads.  This can lead to skin lacerations and bruising to cerebral hemorrhage to skull fractures and sometimes death.  The greatest injuries result from blows to the side of the head.

As the one who took the shot, are you legally responsible or liable for the victim’s injuries?  If you’re the victim, can you file a lawsuit and get compensation for your injuries? It depends.

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Why Are Bankruptcy Courts So Crowded?

Personal bankruptcy filings down

National numbers down but little change in Chicago

In 2016, there were 294,396 personal bankruptcy filings in the U.S., down from 299,515 in 2015 and 307,783 in 2014.  This includes 40,774 personal bankruptcy filings in Chicago in 2016, slightly down from 43,534 in 2015 and 40,774 in 2014. But the 11,194 cases filed in the first quarter of 2017 are only 93 fewer than in the first quarter of 2016.

Why are there still over 40,000 personal bankruptcy cases filed in the Chicago area each year?

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5 Things to Know Before Filing for Workers’ Compensation Benefits

claim form for workers' compensation benefits

Have you considered filing for workers’ compensation benefits?

The Illinois Workers’ Compensation Act provides a system of benefits to employees who suffer injuries resulting from on-the-job accidents. This Act provides limited benefits, regardless of fault, but is an exclusive remedy for a covered employee – meaning they can’t directly sue their employer for negligence. If you have been injured at work, there are at least 5 things to consider before filing a claim for workers’ compensation benefits:

1. Are you an employee?

Only employees are entitled to benefits under the Workers’ Compensation Act. The benefits include payment of reasonable and necessary medical bills (for injury-related medical treatment), temporary disability payments while you are off of work (with a doctor’s authorization), compensation for temporary or permanent disability, or death benefits for surviving family members. In some cases, an employee can seek compensation for the wage difference between their old and new job, or vocational rehabilitation – job training or education if the employee can no longer do their old job. Contract workers, real estate brokers, and commission sales persons are not covered under the Act.

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Volunteer Lawyers for Refugees

Lawyer at O'Hare airport

Trump’s Executive Order Spurs Legal Response

Since the early 1900’s, U.S. Presidents have issued over 13,000 Executive Orders (EO). These are legally binding orders used to direct action by federal agencies under the President’s control. EO’s are more expedient than waiting for laws to be passed by Congress. But like other laws, they must comply with the U.S. Constitution and Amendments to be enforceable.

On January 27, 2017, President Trump issued an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States.” On its face, this sounds desirable for everyone’s safety. However, the directive of the EO was to suspend all refugee admissions for 120 days, bar Syrian refugees indefinitely, and restrict immigration from Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen. Despite the EO’s title, none of the listed countries were responsible for the attacks on 9/11 or any terror attacks on U.S. soil since then.

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Faced with a DUI and Needing a Defense

Alcohol and car keys equals legal conflict

Swerving on the Highway to Hell

An encounter with the police may begin with a short trip to the store for a pack of cigarettes or maybe a taco. Not too far from home, not planning to be gone for long.  Left wheels barely crossing over the center line after a wide right turn. Sitting a little to long after the traffic light turns green, lifting a head off the steering wheel.  Hitting a bump too hard, then a hard pull to the right, while the warped wheel rolls flat.  Might be best to pull off the road awhile and rest tired eyes.

These are some of the scenarios leading to DUI charges against my clients: weaving and crossing over the double yellow line, stopped in the middle of the intersection, driving on a flat tire, sleeping on the side of the road.  Like them, you too may one day find yourself faced with a DUI and needing a defense.

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