DOCKETTHETHEThe Official Publication of the Lake County Bar Association • Vol. 27 No. 11 • November 2020

Art with a Heart

LAKE COUNTY BAR FOUNDATION

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THE DOCKET EDITORIAL COMMITTEEJeffrey A. Berman,Co-Editor

Hon. Charles D. Johnson,Co-EditorJennifer C. Beeler

Hon. Michael J. FuszHon. Daniel L. Jasica

Sarah A. KahnKevin K. McCormick

Hon. Raymond J. McKoskiTracy M. Poulakidas

Stephen J. RiceNeal A. Simon

Hon. James K. SimonianRebecca J. Whitcombe

Alex ZagorSTAFF

Dale Perrin Executive Director

Jose Gonzalez Membership CoordinatorKatherine Montemayor

Office Manager

ContentsTHE DOCKET • Vol. 27, No. 11 • November 2020

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The Docket is the official publication of the Lake County Bar Association, 300 Grand Avenue, Suite A, Waukegan, Illinois 60085 (847) 244-3143, and is published monthly. Subscriptions for non-members are $45.00 per year.

Reproduction in whole or part without permis-sion is prohibited. The opinions and positions stated in signed material are those of the au-thors and not necessarily those of the Associa-tion or its members.

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FEATURES 12 Strategically Navigating

the Commercial Real Estate Tax

BY DANIEL A. DORFMAN AND KEITH S. BRIN

18 The New Workplace Frontier

BY BRIAN S. SCHWARTZ 22 “Zoom Court”: Hints and

Tips From The Bench BY JUDGE JAMES SIMONIAN

COLUMNS 2 President’s Page Integrated Case

Management System – We are Preparing for Launch!

BY PATRICIA L. CORNELL, PRESIDENT

4 The Chief Judge’s Page 19th Judicial Circuit Court

Update BY CHIEF JUDGE DIANE WINTER

6 Bar Foundation A Time to be Thankful,

I Hope BY NICHOLAS A. RIEWER, PRESIDENT

10 Monthly Case Report 26 Foundation &

Committee Minutes 28 The Meeting Minutes August 20, 2020 BY KATHARINE S. HATCH,

SECRETARY

30 In the Director’s Chair Bid Often and Bid High! BY DALE PERRIN,

EXECUTIVE DIRECTOR

LCBA EVENTS IFC 2019 LCBA Office

Rental Pricing 3 Letter to the Editor 3 Fall Luncheons 7 New Members 7 Calendar of Events 10 Grapevine 11 Art With a Heart 29 Lawyer Referral Service 32 Monthly Committee

Meetings

The Docket2

For years attorneys have complained that the Lake County Clerk’s Office needed to join the ranks of those court sys-tems that operate a mod-ern computer document system. I remember how difficult it was for private attorneys attempting to use

CRIMS in the filing room because of their unfamiliar-ity with computer program-ming! Did you know that there are 6,498 codes that the clerks have just to input information and which are also used to obtain the in-formation? I often wonder if some county employees are worried about having to learn a new program once they say goodbye to CRIMS. The current talk of the new system reminds me of how scared but excited everyone was when E-filing began. And I’m sure you recall that Lake County Clerk Erin Cartwright Weinstein recruited attor-neys to act as guinea pigs to test out E-filing. Well, this process will happen again soon for the coming case management system.

You should have already seen a flyer about ICMS cir-culated by the Lake County Bar Association. The flyer provided some informa-tion about the new system, including its background, implementation, and

organization. You should really review it in detail if it interests you, because it is a well written overview of the technological aspect of the new ICMS system. It should be noted that the flyer specifically requests member participation to provide feedback. An ini-tial zoom meeting was held by the Lake County Bar As-sociation on July 17, 2020, to explain the process. If you have any questions regard-ing the flyer you can email Steve Rice at 9101192@gmail.com and put “ICMS” in the subject line.

Thankfully Erin Cart-wright Weinstein was able to arrange a presentation through the LCBA by Journal Technologies. This presentation was held on October 16, 2020. It was designed to allow our mem-bers to see how the future case management system would work.

The next few months

will include various “show and tell” sessions. The Lake County Bar Association will inform members when these sessions will occur and describe their subject matter. ANY member is encouraged and able to participate. It is likely that the “show and tell” sessions will include topics such as: submitting orders electron-ically; filing documents; viewing files; and courtesy copies just to name a few. These sessions will show what the Courts, Clerk, Of-fice of the State’s Attorney and Office of the Public De-fender have been working on for so long – the infor-mation and concepts that this group felt was neces-sary to have in the program. Presenting this information in these sessions will allow attorneys to process the information and concepts, and then funnel their input to representatives of various practice areas, who will dis-

President’sPage

The

BY PATRICIA L. CORNELLPRESIDENT

Hon. Patricia CornellPresident

Joseph FuszFirst Vice President

Tara DevineSecond Vice President

Kathleen Curtin Treasurer

Katharine HatchSecretary

Stephen J. RiceImmediate Past President

David Del Re Thomas Pasquesi Dwayne Douglas

Daniel Hodgkinson Hon. Jacquelyn Melius

Craig Mandell

Integrated Case Management System – We are Preparing for Launch!

November 2020 3

till it and pass it on to the ICMS project managers.

The LCBA recently sent an email to many of the LCBA Committee Chairs asking them to help with the feedback process. The idea was that the committee chairs could take all the in-put and organize it to avoid duplication and then pass it on to the ICMS project managers—primarily, to the Court and the Clerk.

At about the same time as the “show and tell” ses-sions are occurring, Clerk Erin Cartwright Weinstein will be soliciting volunteers to test the new integrated case management system. This would be the Clerk’s second round of guinea pigs. It is likely the LCBA will send out an email from the Clerk requesting members to volunteer and participate by accessing the system while it is being formatted and to work with project managers on recom-mendation for design.

The burden will be on all of you to respond to the Clerk’s request if you want to be involved in hands-

on testing. The Clerk will be seeking members that represent different size law firms and different areas of law and the Clerk is not just looking for members who are technologically savvy. (Yes, Thomas M. Gurewitz, Erin Cartwright Weinstein is likely going to recruit you.) The Clerk’s goal is to obtain as much information as possible regarding the practice-oriented aspects of ICMS before it is launched.

It has been increasing-ly apparent over the last six months that a strong bench, bar, and clerk relationship is necessary to implement new proce-dures. The same remains true as we head into this technological future to-gether. Please keep an eye out for email updates on ICMS. And please consid-er volunteering: this is an opportunity for your voice to be heard for the good of Lake County and the Nine-teenth Judicial Circuit, and for the good of a case management system that we will all use for many years to come.

VIA ZOOM 12:00 – 1:00 pm

November 17 ARDC Update

Fall Luncheons

Dear Editor,

One of our many Local Court Rules is 4-1.02 (B) (1). It is in Part 3.00 of the Local Court Rules entitled Family Law Cases. Further, the full circuit judges must have been very serious about this because it is also in Rule 2-1.02 (B) (1). That part is Civil Proceedings.

The rule says, “No Motion or Response, shall exceed fifteen typewritten double-spaced pages without prior approval of the Court. This page limit includes any sepa-rately filed Memorandum or brief in support of a Motion or Response.”

Motion is conveniently defined in Rule 2-1.01 (A) and duplicated in Rule 4-1.01 (A). A Motion “includes any pleading or paper in the nature of a Petition or Motion, other than a Petition or Complaint which initiates a cause of action.”

Many of my colleagues argue that this page limitation is first of all not important, and secondly, that it does not include exhibits. However, the Illinois Code of Civil Procedure, Section 735 ILCS 5/2-606 is entitled Exhibits. The third sentence of that rule says, “In either case the exhibit constitutes a part of the pleading for all purposes.” A few of my colleagues have argued that a Petition or Motion is not a pleading for purposes of 2-606. However, I refer them back to the definition of “Motion” in the Local Court Rules.

What if something is filed that is greater than fifteen pages without leave of Court? A Motion to Strike under 735 ILCS 5/2-615 would be appropriate.

Recently I have started doing two things. One is to file a Motion for leave to file something of more than fifteen pages, and the other is to file a 2-615 Motion to Strike something that is more than fifteen pages without Court permission. Both of these motions have been successful.

If the full circuit judges are serious about enforcing their rules, this is what must be done. If they are not, then the rules should be repealed. Another alternative is to increase the page limit and to specify whether or not it includes exhibits.

Sincerely,

Gary L. Schlesinger

LETTER TO THE EDITOR

The Docket4

Now that court opera-tions have resumed, albeit mostly within a virtual setting, the Nine-teenth Judicial Circuit is working to resume court sponsored and support-ed programs and events. While it would be easy to cancel all events, the 19th Circuit is committed to do as much as possible virtual-ly. Are the events the same? No, but they allow us to maintain a connection with supporting organizations and volunteers that might otherwise be lost. Public outreach programs touch

and educate the public about the courts and the legal system. Providing more opportunities to learn about our courts is an important tool for increas-ing the public’s confidence in the legal system.

The Girl-Wise Con-ference is an example. In September, the 17th Annual Girl-Wise Conference was presented virtually by the Nineteenth Judicial Cir-cuit and the Lake County Juvenile Justice Council while partnering with Court Administration, Juvenile/Probation Services, the

Lake County State’s Attor-ney’s Office, Nicasa Behav-ioral Health Services, Omni Youth Services, Lake Coun-ty Regional Offices of Edu-cation, the College of Lake County, and women leaders in the community. Tradi-tionally, young women are invited to attend a weekend conference of speakers and activities. However, because this year’s theme was “Em-powerment,” we wanted to demonstrate we could over-

come the Covid obstacle. To adapt to Covid restric-tions, daily workshops were pre-recorded and uploaded to the Nineteen Judicial Cir-cuit’s YouTube page. Speak-ers offered middle and high school young women an op-portunity to hear messages that promoted creativity, healthy bodies, healthy minds, and taking charge of one’s own life. During the week beginning September 28th, videos were uploaded every morning throughout the week. Judges Randie Bruno, Patricia Cornell, Patricia Fix, Jacqueline Melius, Elizabeth Rochford, and I shared our stories to encourage the young wom-en viewers.

Another program that will continue in a modified format is the Veteran’s His-tory project. Traditionally, on November 11th, 20-30 veterans would come to the courthouse to give oral histories concerning their

BY CHIEF JUDGE DIANE WINTER

Chief Judge’sPage

The

19th Judicial Circuit Court Update

November 2020 5

service, which are tran-scribed by licensed court reporters and archived at the Library of Congress in Washington D.C. The morning would start with a breakfast chow line, followed by the National Anthem, a brief program and a group photo. The veterans were treated like royalty. Behind the scenes upwards of a hundred vol-unteers coordinated to host the event. Attorneys, court reporters, veteran’s groups, young marines and many more volunteers made each year a memorable event. This year, elderly veterans could not be invited to attend such an event, so we are gathering a list of volunteer attorney inter-viewers and court reporters who are willing to conduct

the interviews virtually. The volunteers and veterans will work out the safety pre-cautions necessary for the individual veterans. We are also working on a video tribute to distribute to vet-erans throughout the coun-ty. The video will feature Army Ranger, Chris “Tonto” Proronto, who participated in the Benghazi operation along with remembrances from retired Judges Mullen, Fusz and Scully. Finally, the names, service and pictures of our Lake County veterans will be posted on the Nine-teenth Judicial Circuit’s website home page.

Also, the in-house judges’ training program was held in late Septem-ber in the Jury Assembly space utilizing the socially distanced seating for 51

prospective jurors. While it was a little awkward speak-ing to a masked audience, the judges enjoyed being together in one place and engaging in group discus-sions. Our featured speak-er this year was Dr. Peniel Joseph, who holds a joint professorship appointment at the LBJ School of Public Affairs and the History Department in the College of Liberal Arts at The Uni-versity of Texas at Austin. He is also the founding director of the LBJ School’s Center for the Study of Race and Democracy. His presentation, “Building the Beloved Community: The Struggle for Black Dignity and Citizenship and Amer-ica’s Third Reconstruction,” was thought provoking and passionate even over

Zoom. Dr. Joseph is very knowledgeable about social justice issues and chal-lenged the judges and staff to consider other perspec-tives. We had no trouble filling the hour discussion slot after his presentation.

At the end of our train-ing session, the judges dis-cussed what our court calls could look like once the courthouse is able to con-duct in-person court calls. Zoom’s platform pros and cons, safety concerns, and the coming case manage-ment system were all part of the discussions. While no definitive plans were made, all agreed that in some way Zoom, or hopefully a court-centered video-con-ference program, could be part of how court calls are managed in the future.

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In 1620, a boat filled with more than 100 people sailed across the Atlantic Ocean to settle in the new world.

This religious group had begun to question the beliefs of the church of England, and they wanted to separate from it. The pilgrims settled in what is now the State of Mas-sachusetts. Their first winter in the new world was very difficult. They had arrived too late to grow crops and without fresh food, many of the settlers did not survive the first winter. The following spring, the Wampanoag Indians taught the settlers how to grow corn, which was a new food for the settlers. The Indians also showed them other crops to grow in this unfamiliar soil as well as how to hunt and fish.

In the autumn of 1621, bountiful crops of corn, barley, beans, and pump-kins were harvested. The colonists had so much to be thankful for, so they planned a feast. They in-vited the local Indian chief and 90 members of his

tribe to the celebration. The Indians brought deer to roast with the turkey and other wild game that the colonists brought to the feast. The colonists learned how to cook cranberries and different kinds of corn and squash dishes from the Indians. This was the first Thanks-giving. In the following years, many of the original colonists celebrated the autumn harvest with a feast of thanks.

Thanksgiving was made an official national holiday by Abraham Lin-coln in 1863, thanks to the work of Sarah J. Hale, an editor of the popular La-dies’ magazine of the time. Interestingly, no where in the text of President Lincoln’s proclamation is any mention of pilgrims and Indians; however, the proclamation did include that the Detroit Lions and

Dallas Cowboys were to host football games on Thanksgiving.

So, what do we have to be thankful for given the rather unusual year that we have just gone through? I am thankful that the election (by the time you read this) is over and there was a clear win-ner rather than having the court system or the elec-toral college decide the outcome of the election.

I am also thankful that as of the time I dictated this column, the Bears defense is 5-1. I am thank-ful that my family has maintained their health through the pandemic, and I hope that the vast majority of you can be thankful of the same with respect to your families.

I am thankful for all of you who participated in our virtual fundraiser “Art With A Heart”. I am

The Docket6

A Time to be Thankful, I Hope

BY NICHOLAS A. RIEWERPRESIDENT

BOARD OF TRUSTEESNicholas A. Riewer

PresidentCarey J. Schiever

Vice PresidentJoann M. Fratianni

SecretaryPerry S. Smith Jr.

TreasurerJeffrey A. Berman

Immediate Past PresidentJennifer L. AshleyNandia P. Black

Douglas S. DorandoKristie Fingerhut

Hon. Fred Foreman (Ret.)Joseph M. FuszScott B. GibsonKenneth J. GlickDavid J. GordonKeith C. Grant

Amy L. LonerganFredric B. Lesser

Steven P. McCollumJoseph McHughJoseph Morrison

Michael G. NerheimMichael Ori

Shyama ParikhJohn Quinn, Sr.

Melanie Rummel David Stepanich

Hon. Henry C. Tonigan (Ret.)

November 2020 7

thankful for all of the hard work that Dale and Jose put in to allow us to have the fundraiser.

I am thankful for the fact that I only have six more of these columns to write, and I am certain that the few of you who actually read my columns, are very thankful that I only have six more col-umns to write.

I am thankful to all the Lake County Bar Association members who opted to contribute to the Lake County Bar Founda-tion when renewing your dues for the upcoming year. Your generosity is allowing us to continue with our mission of giving money to charitable orga-nizations.

I am thankful to all of you who work hard at mak-ing the Lake County Bar Association and the Lake County Bar Foundation successful organizations.

I hope you all have a happy and healthy Thanksgiving and have an opportunity to enjoy the upcoming holiday season in a safe and healthy way.

Calendar ofEvents

The00

22

November 2 – 20 Art with a Heart

Foundation Fundraiser Online Art Auction Open

November 3 Election Day

Courthouse and LCBA Office Closed

November 11 Veterans Day

Courthouse and LCBA Office Closed

November 12 Free Legal Call-In Clinic

Virtual 4 – 7 pm

November 17 ARDC Update Luncheon

Virtual, 12 pm

November 26 & 27 Thanksgiving Holiday

Office Closed

David Rubin Men’s ClothierBy Appointment847.533.4936

Suited to you

ATTORNEY Fredrick Day

Fred Day Attorney at Law

STUDENTS Christina Devitt-Schuyler

Paralegal Student

Amanda Vesely Law School Student

New LCBAMembers

Welcome

The Docket8

Thank You Lake County Bar Association

After 60 years, on January 1, 2021, Morrison & Morrison, P.C. will be joining forces with the newly

formed law firm of Kelleher + Holland, LLC. With the support of the LCBA and the Lake County

Legal Community we are proud of our track record of vigorously fighting for justice for our

clients in the areas of civil and criminal litigation, including the following recent success stories:

• KANE COUNTY RECORD $7.5M Medical Malpractice Settlement

• $4.75M Commercial Litigation Verdict

• $3.7M Wrongful Death / Medical Malpractice Settlement

• $2.5M Medical Malpractice Verdict

• $2.4M Personal Injury Settlement

• $2M Auto Accident Settlement

• $1M Product Liability Settlement

• Hundreds of Acquittals and Dismissals in Criminal Defense Cases

An exciting new chapter for Morrison & Morrison is about to start!!

www.kelleherholland.com

November 2020 9

Large Firm Sophistication +

Boutique Firm Attentiveness

Corporate + Business Law | Wills, Trusts + Estate Planning

Mergers + Acquisitions | Civil + Criminal Litigation

Commercial + Residential Real Estate | Tax Law

Family Law + Divorce | Land Use + Zoning

Medical Malpractice + Product Liability | Personal Injury

Employment Law | Asset Protection

Social Security Disability | Worker's Compensation

Wrongful Death | Eminent Domain/Condemnation

CONTACT (847) 382-9195attorneys@kelleherholland.com

www.kelleherholland.com

Three Convenient Locations:

North Barrington | Hinsdale | Waukegan

Free Consultations

20+ ATTORNEYSLicensed in

Illinois, Arizona, California,

Florida, and Wyoming

$

The Docket10

August 2020 Monthly Case ReportEditor’s Note: Monthly Case Report is provided by 19th Judicial Circuit Law Librarian, Emanuel Zoberman

Illinois Second Appellate – Civil

Sharp v. BaldwinAppellate Court of Illinois, Second District. April 28, 2020, 2020 IL App (2d) 181004, 151 N.E.3d 725, 440 Ill. Dec. 253

Background: Inmate, who was serving sentence in Illinois Department of Corrections (IDOC) for first degree-murder of a police officer, filed writ of mandamus against director of IDOC alleging he was entitled to sentence credit for completion of various programs while in custody and was thus eligible for immediate release. The Circuit Court, Lee

County, Daniel A. Fish, J., dismissed the complaint with prejudice. Inmate appealed.

Holdings: The Appellate Court, McLaren, J., held that:1 Inmate was not entitled to sentence credit for educa-

tional programs that he allegedly completed prior to enactment of sentence credit amendment, and

2 Inmate was not entitled to mandamus relief com-pelling director to promulgate the regulations that allegedly included retroactive application of sentence credit for program participation.

Affirmed.

GrapevineThe

Lake County State’s Attorney Michael Nerheim announced this week that Assistant State’s Attorney Mary Lu Cole has been named the Outstanding Assistant State’s Attorney for 2020 by the Alliance Against Intoxicated Motorists - Illinois.Cole accepted the prestigious

award during a brief ceremony at the Lake County Courthouse in Waukegan and the President of the Lake County Bar Association was honored to attend. The award was in recognition and gratitude for outstanding dedication to championing the cause of justice for impaired-driving crash victims and their families.

The mission of the Alliance against Intoxicated Motorists is to prevent deaths and injuries caused by chemically impaired or distracted operators of any motor vehicle or watercraft and to assist victims of these crashes in Illinois. AAIM annually names one prosecutor from northern Illinois as the assistant state’s attorney of the year.

Salvi, Schostok & Pritchard, P.C. Partner Aaron D. Boeder has been named one of Law Bulletin Media’s Forty Lawyers Under 40 to watch in the state of Illinois for 2020. This year’s Forty Under 40 honorees were selected from a group of nearly 1,000 nominations and were announced during a virtual happy hour on September 24, 2020. Mr. Boeder joined Salvi, Schostok

& Pritchard P.C. in 2010 and was named Partner in 2019. He focuses his practice in the areas of medical malpractice, catastrophic injury and wrongful death law.

BIRTH ANNOUNCEMENTS: Maverick James WiflerSon of Charlie & Mandi WiflerBorn 9/10/2020. @ 7:45 pm8 lbs, 1 oz., 20 inchesLikes the ladies. Dislikes walking

Grant Cortland SpitzerSon of Jeremy & Rachel SpitzerBorn 9/24/20208.3 lbs., 20.5 inches

If you have news to share? We would love to hear about it! Please send your information to Dale Perrin at dale@lakebar.org.

Art with a Heart

LAKE COUNTY BAR FOUNDATION

WHAT IS IT Art with a Heart is a virtual art auction fundraiser for the Lake County Bar Foundation that replaces the biennial Gala that was canceled this year due to COVID 19.

BENEFICIARIES Waukegan to College, 19th Judicial Circuit Self-Represented Litigant Program, Art Impact Project

WHEN Beginning mid-August 2020 through November 20, 2020.

DETAILS:• Beginning in August, the LCBF will sell 8” x 8” blank canvasses

for $10 each to members, family members, co-workers, neighbors, professional artists, want-to-be artists, celebrities, and anyone walking past the office.

• Buyers of blank canvasses will create their works of art on the 8 x 8 canvas and return them to the LCBA/LCBF office no later than October 26.

• Artwork will be displayed on the LCBA/LCBF website, in the LCBA/LCBF Office and possibly other locations in Lake County.

• Online bidding for each piece of art will begin at $25 and opens November 2 and closes November 20.

• Online bidding will be open to everyone and anyone, including Grandma in Arizona, so spread the word.

• Artwork can include anything as long as it is on or is attached to the 8 x 8 canvas. The more creative the better.Fu

ndrai

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Self-Represented Litigant Program

Contact the Bar office at 847-244-3143 or info@lakebar.org to purchase your blank canvas by September 30, 2020.

The Docket12

This interplay can create pitfalls and challenges based upon the very defects that form the foundation of the litigation. On the one hand, the owner wants to maintain the privilege against disclosure of pre-liminary analyses of the defects. On the other hand, the owner wants to openly share information with the tax authority to ensure it proves its entitlement to tax relief. This article addresses the challeng-ing aspects of navigating the real estate tax appeal process under such circumstances.

I. THE COMMON SCENARIOConsider the following com-

mon hypothetical whereby an owner involved in the redevel-opment of a commercial reve-nue-generating property later discovers defects:

The Redevelopment Project. The owner engages an architect to map out the desired renovation program

and develop all the necessary plans and engages a general contractor to perform all the construction services for the renovation project. Project costs are budgeted to be well into the millions of dollars. At the final walk-through after a year of construction, the project appears to be completed proper-ly, and is both on budget and on time. The owner executes and processes the final payment appli-cations. The project is complete.

Discovery of Post-Comple-tion Defects. Two years after the project has been completed, the owner starts noticing problems – water intrusion from the build-ing envelope, HVAC not properly heating or cooling, and organic

Strategically Navigating the Commercial Real Estate Tax

Appeal Process During Construction Defect LitigationBY DANIEL A. DORFMAN AND KEITH S. BRIN

Property owners involved with construction-defect litigation who are also seeking property tax relief due to the defects and substantial loss of income have a com-mon dilemma. The problem is that any information shared with the tax authori-ties would be discoverable by the property owner’s adversaries.

Daniel Dorfman is the Chair of the Construc-tion Law Group at Fox Swibel. Daniel rep-resents Chicago-based and nationally prominent owners/de-velopers and some of the most well-known design and construc-tion professionals in the country. Keith Brin is the Managing Sharehold-er of Finkel, Martwick & Colson P.C. Keith represents commer-cial, maufacturing, industrial, and farm property owners at all tax assessment levels.

13

growth is identified by a tenant (the “defects”).The Owner’s Consultant’s Preliminary As-

sessments. Understandably, the owner is shocked to discover these defects after spending millions of dollars in the property’s redevelopment. The owner wisely en-gages counsel and a forensic consultant to understand the defects and whether a third party may be at fault (i.e., liable for remediation costs). The owner’s forensic consultant performs an initial evaluation and de-termines that (1) the design professional and general contractor performed faulty work; and (2) repairing the defects will cost millions of dollars, not including the consequential damages of moving and relocating its tenants and the loss of rent during the remediation project. The owner obvi-ously intends to ensure that the parties whose mis-takes caused this mess pay for repairs.

The Owner’s Desire For Property Tax Relief. Now that the owner has his consultant’s preliminary assessments and is working with counsel on the prospect of litigation, he seeks legal advice concerning what would seem to be a very simple question: “As the remediation of the project will be exceedingly expensive, can we obtain any sort of property tax relief due to the defects and substantial loss in income, and, if so, what information can we share in a property tax appeal?”

The easy answer to the owner’s question is: Yes—it is possible to obtain property tax relief and there is nothing stopping you from sharing any information you want with the tax authority. The very big caveat to this answer, however, is: Be careful. Premature disclosure of certain privileged information about the defects to third-party tax valuation experts and authorities (e.g., appraisers) has potentially adverse effects within the context of the owner’s litigation to recoup the remedia-tion costs.

Before proceeding with the tax appeal, an owner should consider the law applicable to expert privilege in the context of construction litigation when deciding which reports and information should be disclosed. The determination of whether a disclosure obligation exists could depend upon whether the experts and consultants who provided the information will testify at trial against the architect and contractor (if necessary), and how the consultants are classified under applicable court rules.1

1 Although each state has their own body of law and set of rules, for simplicity purposes, this article analyzes the privilege issues

II. A PRIMER ON THE LAW OF EXPERT PRIVILEGE

Often times, parties to litigation, including plain-tiffs complaining of construction defects, hire what are known as “expert witnesses.” For every possible type of legal dispute, there is usually an expert that might have something to offer. The key distinction between expert witnesses and “fact” or “lay” witnesses is that, unlike fact

witnesses, experts can pro-vide their professional opin-ion, as opposed to being limited to testifying about facts that they personally know. As explained below, some experts never testify at all, but work with counsel to help prepare a case.

Under the Federal Rules, there are two types of experts:

Non-Testifying Expert: This is an expert “who has been retained or specially employed by another party in anticipation of litigation or in preparation for trial”

and who is not expected to testify at trial. These are sometimes also referred to as “consulting experts.”2

Testifying Expert: This is an expert who has been “retained or specially employed to provide expert testi-mony in the case and whose duties as the party’s em-ployee regularly involve expert testimony.”3

Aside from limited circumstances, facts known or opinions held by non-testifying experts are gener-ally shielded from disclosure or discovery. Testifying experts, on the other hand, must disclose the facts and data that they considered, and the opinions that they formed, through a written report provided to the adversary—after those opinions have been vetted and approved by the client and its counsel. Although draft reports and certain types of communications between the attorney and a testifying expert may be protected from disclosure, generally an adversary is given wide latitude to cross-examine their opinions and the under-lying facts on which they rely.

III. WAIVER OF PRIVILEGEWaiver of privilege is of paramount concern to any

owner who is concurrently dealing with both construc-tion defect litigation and the tax appeal process. As with any privilege, the protection against disclosure associated with expert work can be waived. At its most basic level, waiver occurs when the holder of the privi-

under federal law and Federal Rules of Civil Procedure.2 See Fed. R. Civ. P. 26(b)(4)(D).3 See Fed. R. Civ. P. 26(b)(4)(A).

Yes—it is possible to obtain property tax

relief and there is nothing stopping you from sharing any information you want

with the tax authority.

November 2020

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lege takes some action(s) inconsistent with maintaining confidentiality over the otherwise privileged informa-tion. For example, in the expert context, providing a copy of a preliminary report prepared by an expert con-sultant to a third party can oftentimes result in a waiver of the privilege over the disclosed document.

IV. EXPERT PRIVILEGE IN CONSTRUCTION DEFECT CLAIMS

Construction defect litigation is often complicated and requires precise expert testimony in determining fault and, ultimately, damages. Accordingly, classi-fying the experts and consultants, and determining what information must be disclosed during the course of a lawsuit, are of critical importance. Moreover, an expert’s role may not be determined at the outset of litigation; an expert intended to be a mere consultant may become a testifier, and vice versa. For example, an expert may end up taking a differing view of the facts than that necessary to prove the owner’s claim, or information may come to light that would make the expert a liability at trial.

Waiver of privilege is always to be avoided. For example, if an expert ultimately comes to an unhelp-ful conclusion that is inconsistent with the owner’s theory of the case, the owner will want to shield that information from disclosure. Or, possibly more likely, an early version of an expert’s report may contain very preliminary views that ultimately are inconsistent with the final report that the expert tenders. If such infor-mation were to come to light before trial, it could put the expert at risk of significant credibility attacks in front of the trier of fact at trial – this can be critical, if not fatal, as construction defect cases are often won (or lost) on the credibility of a party’s expert.

V. WHEN TAX APPRAISAL MEETS DEFECT LITIGATION

A property’s value for tax purposes is appealable, and ultimately will become the basis for determining a property’s real estate bill. The process of appealing a property’s assessed value begins with the owner gath-ering information for their counsel to substantiate a property’s shortfalls to decrease the assessed property value, and hence decrease the real estate tax bill.

In our hypothetical, our owner can utilize the forensic report (or parts thereof) prepared by its consul-tant to substantiate the basis for pursuing tax relief. In many cases the owner will also want to obtain a prop-erty appraisal to further argue for a decreased assessed property value. The property appraiser’s report should certainly be coordinated with and include the owner’s forensic consultant’s findings as to the defects, but will also include general property value information such as vacancies, capitalization rates, comparable properties, and an income and expense analysis, to name a few.

Critically, however, the owner must realize that the privilege over its expert’s opinion that is shared with the tax authority will likely be lost. Accordingly, shar-ing of such information, and the concomitant waiver of privilege, must be carefully considered. For exam-ple, if the owner wishes to keep a consulting expert’s role in the case confidential, it should not disclose that expert’s analyses. The owner should consider the potential ramifications of disclosing a preliminary report done by a potential testifying expert if there is a possibility that the conclusions in that initial report may change—otherwise the disclosed conclusions could end up being inconsistent with those presented at trial, harming the strength of the owner’s legal case while increasing the strength of its tax appeal.

Once a final decision has been made as to what otherwise-privileged information should be shared as part of the tax appeal, the owner and its counsel will proceed with the next step of the appeal according to local procedures. Typically, in the next step of the tax appeal process the information as to the defects, the forensic consultant’s reports, and the appraisals are filed with the assessor or boards of review to decide whether the property should have a decrease in as-sessed property valuation.

If the owner’s tax counsel argues the issues, prob-lems, and calculations, it will likely result in some level of tax relief. While such an aggressive approach to the property tax appeal effort could result in a lower tax liability, the owner must also consider that such an approach could also significantly impact his position down the line in related litigation. However, without revealing the defects, the basis upon which the tax relief may be granted may be tenuous, and certainly will not be as strong. Yet not appealing a property’s valuation could leave an owner with an even larger real estate tax liability than necessary.

Counsel may be able to tiptoe around revealing the actual defects, or reveal them through publicly available information (such as relying exclusively on publicly filed court documents and non-privileged summaries of the defects), and perform a simplified income analysis. But the owner’s chances of obtaining a higher level of relief increases significantly by bolstering its argument with all facts—and expert analyses—available. If early disclosure of expert opinions is deemed necessary, the owner, counsel, and the expert should ensure that the analysis provided to the tax authority is as final and pol-ished as possible—in other words, all efforts should be made to ensure that whatever report is provided as part of the tax appeal does not substantially change before it is disclosed in the defect litigation. Concurrently, the owner should strategize with its counsel and expert to hedge as may be necessary to ensure modifications can be made, as necessary, without substantial negative impact to the expert’s credibility.

November 2020 15

VI. BALANCING DISCOVERY AND TIMING ISSUES

As outlined above, without proper oversight and han-dling as to what information is to be shared with the taxing authorities, the owner might not only waive privilege but also inadvertently create inconsistent opinions as to the scope and extent of the defects between the tax appeal process and the construction defect litigation. While com-petent counsel may be able to diffuse the significance of inconsistent opinions at trial, they are best to be avoided.

Of course, this does not mean the owner should not make disclosures to the tax authority in an attempt low-er its real estate tax bill. Rather, the owner should work closely with counsel during the property appeal process to avoid conflicts in opinions between both venues (i.e., the construction defect litigation and tax appeal) and so as to properly reduce its real estate tax liability.

Timing of events, however, often presents challeng-es with regard to balancing discoverable versus non-dis-coverable information. Property tax appeals generally must be filed during a very narrow window of time in specific calendar years,4 while construction defect litiga-tion is only limited by the relevant statute of limitations and/or statute of repose (generally within a set number of years when the owner “knew or should have known” of the defects). To illustrate how these timing issues may impact owners, consider, for example, that it’s not unusual that owners of a just-purchased commercial property will aggressively pursue reducing the proper-ty’s valuation for tax purposes, but then in the subse-quent 10 years discover defects that warrant litigation. The owner (and the expert property appraisers and others) may be hard-pressed to explain why the defects were not discovered earlier (i.e., during the tax appeal) in addition to responding to many other questions that could imperil their litigation position.

VII. CONCLUSION: DETERMINE WHETHER THE TAX FIGHT IS MONETARILY WORTH THE RISK

It is not news to any property owner that real estate taxes will often make up a substantial operational ex-pense for the property, and an improper valuation could cost an owner tens of thousands of dollars a year (or more), among other possible consequences such as loss of potential tenants. However, as previously discussed, the owners involved in construction defects litigation who also initiate property tax appeals need to simulta-neously and carefully weigh the impact of the tax appeal

4 Depending on jurisdiction, the appeal is filed with a township as-sessor, which can then be appealed to the county board of review, and then appealed to the property tax appeal board or the state court, for further review. Property tax appeals are intensely local, and in many jurisdictions normally only allowable within very nar-rowly scheduled time windows set by each county and township – sometimes the initial filings are all due within a 30-day period that can change from year-to-year. Missing these short filing windows may bar a property tax appeal for the given assessed tax year.

on the defect litigation.Successfully reducing property valuations can result

in lower assessments and thus significant year after year cash savings for property owners. And, while of course paying a large tax bill can also impact a proper-ty’s overall economic viability, shouldering the burden of funding construction litigation is likewise not an easy task. The strategic decisions the owners make when facing these circumstances hold significant and lasting monetary stakes for the owners.

Property owners must work closely with their tax and litigation counsels to not only walk the proverbial tight-rope of disclosures but also to weigh the economic and legal impacts of pursuing the tax appeal. Even sophisti-cated real estate professionals accustomed to connecting these economic dots of potential costs and benefits will grapple with weighing the considerations and finding an appropriate balance. The owners may conclude after consultation with counsel experienced in these nuances that pursuing the tax relief will not only be beneficial in the short run but that any potential tax savings as a result may help to fund future or anticipated defects litigation. Consulting the right counsel and experts can mean all the difference for commercial property owners when tackling all the issues and decisions that need to be made simulta-neously – or paced strategically – in both forums.

The Law Offices of David R. Del Re200 N. Martin Luther King, Jr. Ave., 2nd Floor Waukegan, IL 60085office 847.625.9800 fax 847.625.9980 www.daviddelrelaw.com

DRD

The Law Offices of David R. Del Re, P.C.

celebrated 20 years as a firm on

October 31, 2020.

The Law Offices of David R. Del Re, P.C. is a Lake County firm proudly practicing

in all areas of Family Law, Traffic and Criminal Defense.

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• Divorce Representation• Child Support• Complex Division of Assets• Parentage & Paternity• Collaboration / Mediation• Order of Protection• Child Custody and Visitation• Spousal Support• Prenuptial and Postnuptial Agreements• Uncontested Divorces• Interstate Divorce Issues

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Office: 847-807-8889

info@strategicestateplans.comwww.strategicestateplans.com

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November 2020 17

INTRODUCING NEFERTITI M. FRANCENefertiti M. France began her legal career in the U.S. Air Force in 1993. She received her Juris Doctor while in the U.S. Air Force in 2006 from Rutgers in New Jersey and retired from the Air Force as a Master Sergeant in 2010. She is admitted to practice in New Jersey (2006), Pennsylvania (2006) and Illinois (2015). She has represented clients in all areas of family law including divorce, child custody, parentage, child support, spousal support/maintenance (alimony), adoptions, orders of protection and guardianships. She is a certified mediator and encourages alternate dispute resolution whenever it can help her clients move forward toward resolution. She is also one of the Lake County court approved guardian ad litems. Nefertiti practiced family law in Illinois for many years as a successful solo practitioner before joining forces with Strategic Divorce in 2020.

Ms. France has extensive experience in handling highly sensitive and volatile cases. Her focus is to obtain the best result for her clients through amicable negotiations and/or mediation. Although it is her goal to prevent the costly process of litigation, she understands there are some cases that must be litigated. In those cases, Nefertiti is a fierce litigator for her clients.

INTRODUCING ANN LEONEAnn Leone is a Chicago native who graduated from Loyola University with a Bachelor of Science in Criminal Justice and Psychology. She received her Juris Doctorate from the John Marshall Law School. She has worked in various government agencies, including the Department of Children and Family Services and The Cook County Office of the Public Guardian.

Ann comes from a Hispanic family and is fluent in Spanish and French. Her purpose driven nature and multi-cultural background has helped her establish caring relationships with her clients.

Ann has received her certification in Mediation through the Chicago Center for Conflict Resolution. She is committed to helping clients feel like they are in control of their most intimate family problems and guides families towards the most peaceful resolution possible. She understands there is no winning or losing in Family Law, her goal is to leave every client more satisfied with their family situation than they were prior to her representation.

• Wealth Protection Planning• Wealth Transfer Planning• Asset Protection Trusts• Qualified Personal Residence Trusts (QPRT)• Irrevocable Life Insurance Trusts• Funding Living Trusts• Opportunity Shifting Trusts• Trust Administration• Wills• Powers of Attorney• Probate• Guardianships• Estate Freeze Techniques• Business Succession Planning

900 N. Shore Dr., Suite 255 Lake Bluff, Illinois 60044

Office: 847-807-8889

info@strategicestateplans.comwww.strategicestateplans.com

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The Docket18

Notwithstanding the sheer number of jobs that haven’t come back, the gradual return of people to work is wel-come news to employers and employees who simply want to earn a living. Yet COVID-19’s impacts on workplaces around the globe have been dramatic and will assuredly extend into 2021. With the immediate and ever-chang-ing “new normal” coming more into focus each passing week, forward thinking businesses should stay on top of the many legal, practical, and safety considerations. Indeed, due to the significant volume of laws and regulations surrounding the still tough-to-grasp pandemic, and frequent changes to (and sometimes reversals of) prior guidance and rules, employers must commit to adapting to staying abreast of these evolving standards. This is no time to become fatigued or complacent. Don’t let up.

PLANNING AND COMMUNICATION

Businesses would be well-served

to designate an internal team or assigned point person in charge of COVID-19 operating decisions. In addition to allaying as much employee anxiety as possible, a knowl-edgeable point person assigned to field employee ques-tions and concerns would go a long way toward fostering direct dialogue with the correct message.

Other valuable planning and communication protocols include: establishing business continuity plans to address high absenteeism and supply chain disruption; creating

and testing emergency communication channels; training supervisors on non-discriminatory application of all policies relating to COVID-19; and developing written communications to managers and employees to convey key messages about operations, point persons, poli-cies, protocols and business continuity.

Moreover, managers should re-ceive training on how to address em-ployee questions, and, if necessary, be provided scripted or outlined Q&A’s to respond to questions.

The New Workplace Frontier: An Overview of Employment Law Considerations

for Businesses Operating in the COVID-19 EraBY BRIAN S. SCHWARTZ

Notwithstanding the sheer number of jobs that haven’t come back, the gradual return of people to work is welcome news to employers and employees who sim-ply want to earn a living. Yet COVID-19’s impacts on workplaces around the globe have been dramatic and will assuredly extend into 2021.

Brian S. Schwartz is an experi-enced man-agement-side labor & employment lawyer and partner at Klein Paull Holleb & Jacobs, Ltd., located in Highland Park, Illinois.

19

FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)

FFCRA1 is federal legislation that became effective on April 1, 2020 and is currently scheduled to run through December 31, 2020. FFCRA applies to most businesses with fewer than 500 employees and includes two separate laws: Emergency Paid Sick Leave Act (EPSLA)2 and Emer-gency Family and Medical Leave Expansion Act (EFM-LEA)3.

EPSLA requires employ-ers to provide two weeks (up to 80 hours) of paid sick leave when an employee is unable to work or unable to telework because the employee:

(1) is subject to a federal, state or local quarantine or isolation order related to COVID-19;

(2) has been advised by a health care provider to self-quarantine related to COVID-19;

(3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis;

(4) is caring for an in-dividual subject to an order described in (1) or self-quar-antine as described in (2);

(5) is caring for a child whose school or place of care is closed (or child care is unavailable) for reasons related to COVID-19; or

(6) is experiencing any other substantially simi-lar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Moreover, because employees may take up to two weeks of paid sick leave for any combination of qualifying reasons, tracking leave and the reason(s) for same is key.4

Under EFMLEA, if the employee has been employed for at least thirty days, the employer must provide up to an additional 10 weeks of paid expanded family and medical leave if the employee is unable to work or unable to telework because they are caring for a child whose school or place of care is closed (or child care is unavailable) for reasons re-lated to COVID-19 (same as leave reason (5) under EPSLA). Time taken under EFMLEA counts against the employee’s

1 Families First Coronavirus Response Act, P.L. 116-127.2 Families First Coronavirus Response Act, P.L. 116-127, Div. E, §

5101-5112.3 Families First Coronavirus Response Act, P.L. 116-127, Div. C,

§ 3101-3106.4 Families First Coronavirus Response Act, P.L. 116-127, Div. E, §

5102

entitlement to twelve weeks of traditional FMLA (non-COVID-19-related), so if the employee has already exhaust-ed traditional FMLA leave in that period, the employee is not entitled to additional leave under EFMLEA.5

How is FFCRA pay calculated? For leave reasons (1), (2), or (3), employees taking leave shall be paid at ei-ther their regular rate or the applicable minimum wage,

whichever is higher, up to $511 per day and $5,110 in the aggregate (over a two-week period). For leave reasons (4) or (6), employees taking leave shall be paid at two-thirds their regular rate or two-thirds the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a two-week period). For leave reason (5), employ-ees taking leave shall be paid at two-thirds their regu-lar rate or two-thirds the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a twelve-week period) – two weeks of paid sick leave followed by up to ten weeks of paid leave under EFMLEA.6

Small businesses with fewer than fifty employees may qualify for exemption from the requirement to

provide leave due to school closings or child care unavail-ability if the leave requirements would jeopardize the viability of the business as a going concern.7

Covered employers qualify for dollar-for-dollar re-imbursement through tax credits for all qualifying wages under FFCRA. Qualifying wages are those paid to an em-ployee who takes leave for a qualifying reason, up to the appropriate per diem and aggregate payment caps.

Businesses should determine whether FFCRA applies, and if so, develop FFCRA-compliant written policies. The Department of Labor FFCRA notice should be posted in conspicuous places and possibly displayed on Company intranet or sent to employees by e-mail; HR and other staff should be trained to appropriately handle FFCRA requests and documentation.

5 Families First Coronavirus Response Act, P.L. 116-127, Div. C, § 3101-3106.

6 Families First Coronavirus Response Act, P.L. 116-127, Div. E, § 5110.

7 Id. at § 5111.

Small businesses with fewer than fifty employees may qualify for exemption

from the requirement to provide leave due to school closings or child care unavailability if the

leave requirements would jeopardize the viability

of the business as a going concern

November 2020

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OCCUPATIONAL SAFETY & HEALTH ACT (OSHA) Businesses must review up-to-date OSHA guidance

for preparing workplaces for COVID-19. OSHA imposes a general duty of care requiring employers to provide a safe and healthy working environment. OSHA can require cleaning and sanitation, screening of employees and on-site visitors, social distancing, appropriate personal protective equipment (PPE), and certain safety measures if someone at work displays COVID-19 symptoms. There is very specific guidance on PPE and other recommend-ed controls categorized by job risk exposure level and by industry. Further, businesses should assess whether to enhance ventilation (e.g., increase air exchange in the building), intensify janitorial cleaning by disinfect-ing and cleaning workspaces routinely and effectively, develop internal visual markings for queues or lines or places of inquiry (e.g., “stand here”), and cancel or limit business travel.

As with any COVID-19 expression of concern or com-plaint (internal or external), do not take adverse actions against employees who may be deemed whistleblowers. Talk to employees who present safety issues to work out a reasonable resolution before matters escalate.

An employee may refuse to work only when all the following conditions are met: (1) where possible, employee asked the business to eliminate the perceived danger and the business failed to do so; (2) employee refused to work “in good faith” (genuinely believed an imminent danger exists); (3) a reasonable person would agree there is a real danger of death or serious injury; and (4) due to the urgency of the hazard, insufficient time exists to get it corrected through regular enforcement channels such as an OSHA inspection.8

AMERICANS WITH DISABILITIES ACT (ADA)Ordinarily, ADA permits medical inquiries and ex-

aminations under limited circumstances. Due to COVID-19’s classification as a pandemic, businesses now possess more latitude in the questions they may ask and actions they may take to screen employees.

Temperature Screening: Businesses may conduct temperature screening during a pandemic. Centers for Disease Controls and Prevention (CDC) considers a fever to be a temperature of 100.4 degrees Fahrenheit or higher. The occurrence of a fever does not mean an employee is COVID-19 positive, and the absence of a fever does not mean an employee is negative. However, temperature screening is regarded as a reliable benchmark.

Employer Administered COVID-19 Tests: Businesses may conduct testing to determine whether employees entering the workplace have COVID-19 if testing is “job re-lated and consistent with business necessity” to determine whether such employees may be a direct threat to others. Equal Employment Opportunity Commission’s (EEOC) updated guidance also confirms that employers who follow CDC recommendations regarding whether, when, and for

8 38 FR 2681, Jan. 29, 1973, as amended at 38 FR 4577, Feb. 16, 1973

whom testing is appropriate will be considered as compli-ant with the “job-related and consistent with business ne-cessity” standard. Any employee who refuses permissible testing (or who refuses permissible inquiries, as discussed below) may be denied entry into the workplace. 9

Inquiries: Businesses are generally permitted to ask employees who will be physically entering the workplace whether they have symptoms associated with COVID-19, and any employee who reports symptoms may be denied entry into the workplace. However, employers are gen-erally not entitled to ask symptom-related questions of employees who will be teleworking or who will not be in close contact with co-workers or others while performing their jobs. In addition, EEOC guidance states that if an employer wishes to make inquiries (or impose testing) only on one (rather than all) employee, ADA requires the employer to possess a “reasonable belief based on ob-jective evidence” that the particular employee may have COVID-19. 10

Absences from Work: Employers are always permit-ted to ask an employee why he or she was absent from work, even if the reason may be health-related. 11 EEOC guidance also confirms that an employer may ask an employee returning from personal travel where he or she has been, and may require that employees comply with quarantine guidance before returning to work depending on the location of their travel.

Duty to Accommodate: If an employee has a physical or mental condition that may be exacerbated by COVID-19, including less obvious conditions like OCD, anxiety, or pregnancy, they may request and be eligible for a reasonable accommodation. Flexibility by businesses is important in determining if some accommodation is possible under the specific circumstances. Businesses should take seriously all requests for reasonable accommodation. Once such request is made, the business must participate in an interactive process to determine the existence of a reasonable accom-modation. A business is not required to provide the best or exact accommodation requested, the accommodation need only be reasonable. Refusing to provide any accommodation should only occur if the request presents an undue burden. Note that a request for an indefinite unpaid leave of absence is likely not a reasonable accommodation under the ADA and parallel Illinois discrimination law. 12

HANDLING EMPLOYEES WHO ARE HESITANT TO RETURN TO THE WORKPLACE

Businesses are contending with intricate problems in returning employees to the workplace. Accordingly, busi-nesses must balance their rights against employee rights.

9 “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”, U.S. Equal Employe-ment Opportunity Commission, September 8, 2020. Available at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#

10 Id.11 Id.12 Id.

November 2020 21

Businesses possess the right to recall employees. A generalized anxiety about feeling unsafe going to work is not an acceptable reason to refuse to return to work. Generally, if an employee refuses to return to work after reasonable notice, the employee can be discharged. However, against the backdrop of COVID-19, business-es should not brush off employee concerns without, at a minimum, attempting to understand the employee’s issues and engaging in meaningful dialogue to achieve a mutually satisfactory resolution.

Where an employee simply asserts a general fear about being in public or working in somewhat close proximity to their co-workers, explain that your business is following CDC, OSHA, and local safety guidelines to ensure a safe workplace. If an employee raises specific safety concerns regarding your facility (or your client’s) explain why the employee’s concerns are incorrect by providing exam-ples of the safety practices in place. If it appears a safety concern is legitimate and present at the facility, investigate and remedy it as soon as possible. If an employee informs you or your client of an underlying medical condition, disability, or their concerns about protecting a high-risk family member in their household, discuss a reasonable accommodation, if possible.

ONGOING SAFETY MEASURESConsiderations to maintain and reinforce social

distancing include: (1) limiting workplace occupancy; (2) one-way aisles; (3) placement of tables or other physical barriers to create distance; (4) contactless delivery; (5) placing floor tape to mark six-foot distances; and (6) lim-itations on break room or elevator usage.

Other workplace safety considerations which may also be mandated by state and local governments include: (1) creating distance between desks and workstations; (2) modifying open floor plans with partitions; (3) making only certain workstations available (e.g., every other); (4) creating touchless entries and devices (possibly eliminating use of touchscreen time recording devices); (5) improving air flow and ventilation; (6) adding signage throughout the workplace setting forth distancing and safety requirements; (7) requiring masks for entry and throughout being present at the workplace; (8) requiring quarantining after personal plane travel; (9) limiting work travel; (10) continuing to hold as many meetings via teleconference as possible; (11) allow-ing telework as much as possible; and (12) working with employees when they request practical accommodations.

WHEN AN EMPLOYEE TESTS POSITIVE FOR OR LIKELY HAS COVID-19

Pursuant to CDC guidelines13 (current as of the last week of September 2020), an employee who tests positive for COVID-19 or likely has the virus should be isolated

13 “General Business Frequently Asked Questions”, Centers for Disease Control and Prevension, Updated Sept. 14, 2020. Available at: https://www.cdc.gov/coronavirus/2019-ncov/com-munity/general-business-faq.html

from work and may return under the following conditions:With symptoms: (1) at least ten days since symptoms

first appeared; and (2) at least twenty-four hours with no fever without fever-reducing medication; and (3) other symptoms of COVID-19 are improving. Note that loss of taste and smell may persist for weeks or months after recovery and need not delay the end of isolation.

If an employee had severe illness from COVID-19 (e.g., were admitted to a hospital and needed oxygen), their healthcare provider may recommend they stay in isolation for longer than ten days after symptoms first ap-peared (possibly up to twenty days) and they may need to finish the period of isolation at home. If testing is avail-able in their community, their healthcare provider may recommend they undergo repeat testing for COVID-19 to end isolation earlier than would be done according to the criteria above. If so, the employee can be around others after they receive two negative tests results in a row, from tests done at least twenty-four hours apart.

Without symptoms: if an employee continues to have no symptoms, they can end isolation after ten days have passed since the date they tested positive for COVID-19.

If testing is available in the employee’s community, their healthcare provider may recommend they undergo repeat testing for COVID-19 to end isolation earlier than would be done according to the criteria above. If so, the employee can be around others after they receive two negative test results in a row, from tests done at least twenty-four hours apart.

WHEN AN EMPLOYEE COMES INTO CLOSE CONTACT WITH SOMEONE WHO HAS COVID-19

Pursuant to CDC guidelines (current as of the last week of September 2020), an employee who has been in close contact with someone who has COVID-1914 should stay home for fourteen days after their last contact with a person who has COVID-19.

CONCLUSIONWhile this article contains a high degree of detail

and is intended to be significantly substantive, there are important COVID-19 workplace issues, real situations, and hypotheticals that could not be covered. In light of the complexities associated with operating a business in the COVID-19 era, employers should carefully review the terms of state and local orders, as well as new laws and guidelines issued by any level of government.

14 “Close contact” is defined as: (1) being within six feet of some-one who has COVID-19 for a total of fifteen minutes or more; (2) having provided care at home to someone who is sick with COVID-19; (3) having direct physical contact with the person (hugged or kissed them); (4) having shared eating or drinking utensils; or (5) someone with COVID-19 having sneezed, coughed, or somehow got respiratory droplets on the employee.

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Our Lake County Bar Association has sent Zoom tips to its members, including “Zoom Training for Attorneys” and has other assistance available on its website. Those tips can help you log on, develop an ac-count, and master the basics. But once you are increas-ingly comfortable with the technology, what recom-mendations are there to make sure we all do our best in “Zoom court”?

This author surveyed the 40 judges of the Nineteenth Judicial Circuit and asked about each one’s do’s and dont’s, with examples of helpful conduct and good or bad ideas. (The bottom line of most judg-es’ frustration: Don’t they remember they’re in a courtroom?)

From there, the author compiled some little and big things that those of us who merely aspire to techno-logical mediocrity can do to help our Zoom presentations. None of the following is complicated, but it may

not be obvious to all Bar members. This article intends to remind attorneys of the basics of “Zoom court,” add some helpful hints, and offer some tips to ensure your inevitable Zoom fails are forgettable, or at least quiet. Since, yes, the kids would call some of the fails “epic.”

EASY SUGGESTIONS1. Mute yourself until addressed.

You do not want to be the person who interrupts an entire courtroom. 1 Your audio (in settings) should be set at “mute my microphone when joining meeting.” You may wish to do the same with video, too (also in settings) and undo each (at the bot-tom left of your screen) when you’re

1 That’s especially true when you forget that an entire courtroom can hear your audible frustration with an aspect of your Zoom login. I’ve actually had to mute at-torneys whose uncensored excited utter-ances were better left unheard.

“Zoom Court”: Hints and Tips From The Bench

BY JUDGE JAMES SIMONIAN

Attorneys now spend time in front of a computer screen instead of a courtroom bench doing “Zoom court” sessions. In a twist, younger attorneys now seem more comfortable with court while veterans of traditional courtrooms are learning new things every day.

Judge James Simonian has been an associate judge since 2010, and is currently assigned to the Family Division. He previously served in the Traffic/Misde-meanor and Civil Divisions, and formerly worked in the Lake County State’s Attor-ney’s Office and in private practice. He is also a member of The Docket editorial board.

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ready to be seen and heard. Besides, you may prefer that an entire courtroom does not see you quietly work at your desk when you know your case won’t be called for awhile.

2. Ensure you’re identified on Zoom as an attorney with your name, client’s name and (the Clerk will add) case number(s). In most courtrooms, that will give you a priority. It will also help the judge and clerk to continuously identify you, as multiple Zoom boxes of litigants invariably move when litigants join or leave.

3. If you haven’t done this before, check before-hand that your video and audio are working. You may wish to double-check the height of your Zoom camera and the back-ground everyone in “court” sees. Virtual backgrounds are fine yet may wash out something you put on the screen.2 A trial run with someone else at the office is worthwhile.

4. Dress appropriately since you are in court. Some judges dislike anything but a shirt and tie, i.e., pro-fessional attire, and discourage eating or smoking, so know your courtroom.3 Again, court rules have not changed. There’s a reason why the phrase “Zoom shirt” has entered the American lexicon. Having several with a few ties or their appropriate equivalent near the office computer is so easy, there’s really no reason not to be dressed for court.

5. Remember to click “Leave” when finished or a courtroom will see and hear you unfiltered after you think you’ve left the meeting. 4

MORE NOT-SO-OBVIOUS SUGGESTIONSUse the “Chat” function with the Clerk or, some-

times, with the opposing attorney. It’s proven invalu-able for courtroom case management. Still, don’t “chat” with social greetings for the entire courtroom to see. With some courtrooms, the first thing an attorney should do is “chat” with the Clerk if they’re ready or going to another courtroom. And certainly don’t “chat” privately with the judge. Res ipsa loquitur.

2 The same virtual background that’s great with friends may not work professionally (and vice versa).

3 Some of us in Family Court are thrilled with pretty much any-thing concise and civilized.

4 One attorney forgot to do so and others saw him change completely out of his “Zoom shirt.” Another forgot and could be seen on the treadmill until the judge put the attorney back in the “Waiting Room.” This author has heard more than one attorney, who forgot to press “Leave,” talking with a client until “mute” and “Waiting Room” could be pressed. One conversation was so contentious it caused an audible gasp with the rest of the courtroom until muted.

Ensure you know how your courtroom calls its cas-es, realizing that, for example, the Family, Traffic, and Civil courtrooms will work quite differently. Usually, one person calls the case, and whether it’s the judge, clerk, or a prosecutor, ensure you’ve checked in appro-priately. Knowing and acting upon that one question will save you time, sometimes hours.

The Zoom login num-bers and passwords for the courtrooms are up-dated regularly on the Circuit’s website, cur-rently at http://19thcir-cuitcourt.state.il.us/2163/Remote-Court-Hearings. There is also the failsafe “call in” phone number which suffices for certain courtrooms. (Obviously, certain courtrooms and court procedures may require video, especially if

it’s the finalization of the case.) Sometimes the phone number is a savior if it’s a routine matter and your or your client’s technology is acting up. If your practice puts you in certain courtrooms regularly, you may wish to have this listing next to your and your secretary’s computer. The meeting ID, password, and phone num-ber should be sent to your client as well.

Also, two devices close to each other logged into the same courtroom at the same time can interfere with each other and cause static, so either one person should log off, or one person should move.

If the computer or phone you’re using sounds a notification when you get an email (or anything else), either disable that sound or use a different device. Nobody else wants to know you just got an email or the neighbor is walking his dog in front of your Ring doorbell—especially when you’re talking on the record. Some of us hear this almost daily in court.

If there’s an interpreter involved, remember vir-tual interpretations are a bit different. In person, we in Lake County had been spoiled with so many good interpreters who can translate while we are talking. That seamless, simultaneous interpretation now gives way to consecutive interpretation on Zoom, or trans-lation after the speaker is finished. Talking in shorter, succinct sentences and waiting for the interpreter to finish, will make things far smoother.

In a high-volume courtroom, it’s naïve to think you’ll be able to negotiate with an attorney like in-per-son court. That, unfortunately, must be done before-hand, privately, or on another day.

Remember to rename yourself and remind your cli-ent to do the same. If the device being used lists only the device name, change the name for court. “Galaxy 10,” “iphone6,” or just the user’s phone number do not

Several judges cited the litigants’ presence in

moving cars as the single most irritating habit of

Zoom court participants

November 2020

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show who is present. Be assured this is a time-saver, since cases without names tend to be called later since only those known to be present are called first. Some attorneys in branch court have not met their clients first, so renaming is essential. 5

Nearly every day, this author sees people while they are riding in cars--not just parked in cars near the courthouse because they didn’t know court was by Zoom and would be discouraged from entering. Several judges cited the litigants’ presence in moving cars as the single most irritating habit of Zoom court partic-ipants. Some are actually driving and talking with the court, including attorneys. That’s not only dangerous, but some actions are actually illegal. 6 Also, a surpris-ing number of litigants like walking with their devices while in court. When screens of dozens in volume courtrooms includes several walkers, it can be dizzying to watch, not to mention distracting. And I’m not even driving.

YOU ALREADY KNOW THIS, BUT … It bears repeating: remember the professional-

ism you showed before the pandemic. Several judges lamented about the increased informality and lack of professionalism during Zoom court. An attorney should address litigants and fellow attorneys the same way as before Zoom – just because your courtroom is electronic doesn’t mean you suddenly start to call an-other attorney by his or her first name. And (for most of you, most of the time), you’re in front of your client – one of the reasons you’re being paid like a profession-al is to act like only professional attorneys know how to act. Your client appreciates your professional demean-or.

While you’re remembering to act professionally, some clients need to be reminded they’re in a court-room. Some have actually been in bed and dressed for bed, not court. And not alone while in bed for court. Some clients need to be reminded they must look ap-propriate for court … and it’s not that tough to do.

Your clients may benefit from ensuring they know how to “go to Zoom Court” ahead of time. Every day I get at least one email from Zoom telling me a litigant “checked in” to court hours or a day ahead of time, assuredly to know they’re doing it right. They’re simply going through the steps of something important to them and ensuring as much as possible that their de-

5 Also remind your clients to refrain from nicknames when naming or renaming themselves on their device. While some nicknames are just fine for social life, they appear strange in court. Nick-names I’ve seen or heard about such as Jazzy’s phone, The Man, Queen B, Skit P, The Rock, “Big Daddy”, etc. just don’t look right. But even a non-Duke fan like this author smiled at one guy who went by “Coach K.”

6 See 625 ILCS 5/12-610.2. (Nah, I wasn’t distracted by anything while driving - I was only talking with the judge in open court.) That’ll go over well … when you explain it in open traffic court.

vices work. Obviously, this helps prepare ahead for any missteps.

Also, remind the client to click “Leave” before call-ing you. That way the courtroom doesn’t hear the client say anything, especially a conversation with his or her attorney. 7

Be prepared for the possibility that you may get a call while in court. But just like resisting a polite “hello” to a juror in the hallway, you can’t answer your phone while in court. (Remember, I’m getting these suggestions from judges in Lake County who’ve en-countered this.) Please remind yourself that you’re in court (and have voicemail). Similarly, you can wait to say “hello” when a coworker walks by. They’ll get over it, just like the jurors we’ve ignored in hallways our entire careers.

SOME MEDIATION NOTESSome other tips come to us on mediation from

retired Lake County Judge and certified mediator Mi-chael Fusz. He reminds us to schedule a brief practice session alone with attorneys a day or two ahead to confirm connectivity and that the microphone and speakers work well, since they’re not used as often as a courtroom. Fusz also points out that the practice session allows the parties to test out breakout rooms to ensure a client could be heard and that nobody else could hear an attorney talk with a client. The prepa-ration must include phone numbers for everyone to ensure their participation or backup plan for last-min-ute issues.

A FEW TRIAL ISSUESShare screen with documents is tough. Instead of

trying to Share Screen, one judge has litigants physi-cally mail him and the party opponent proposed pre-marked trial exhibits, which has worked well. If you use Share Screen, practice it before the actual proceed-ing so you’re accustomed to it. Some attorneys don’t know how to use it and can’t use required exhibits.

Further, while a witness may need his memory refreshed, one must guarantee no litigant’s memory is being refreshed without proper foundation and per-mission. In a physical courtroom, a witness refreshing his own memory with paper would be seen and a con-temporaneous objection would be heard. This author had a witness who openly did so until admonished and the foundation was laid.

Moreover, the technological device used for the Zoom court appearance essentially cannot be used for anything else, like a computer which may be needed

7 While not necessarily at the heart of privilege, the courtroom (like mine the other day) shouldn’t hear your client say to his attorney “You saved my a--, bro” after his court session ended but he for-got to click “Leave.” The judge cannot click “mute” and put him back in the “Waiting Room” quickly enough.

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for documents during court. This simple fact serves as a reminder to download anything needed beforehand.

A FEW MORE FAILSFor some reason, people far more often forget to

put on presentable clothes. As one judge wrote, “No shirt, no service.” More than one judge noted men who forgot that rule. A marked increase of baseball hats is also evident.

Other attorneys have been known to eat during the court proceedings. One actually licked his fingers during the pretrial. Refraining from food during a non-mealtime court event is encouraged.

One self-represented litigant forgot that her camera was on and court is in session even if nobody is talking. While waiting for her case to be called, she walked to the back of her room, removed her shirt, put on a bra, put her shirt back on, and came back to the computer and sat down. She was mortified when the judge reminded the courtroom that the proceedings could be seen by everyone and were on “You Tube.” Oh, this really happened in Lake County.

The worst involve rest rooms. Yes, there is a men-tion of “rest rooms” in an article involving, essentially, a camera in a courtroom. This author saw one gentle-man logged into Zoom from a bathroom. With video. A public bathroom. Luckily, nobody else was in it, but, still. By the way, it even failed the test of pragmatism. The Zoom reception in a public restroom isn’t good,

a fact one wouldn’t have thought would be confirmed when we started this.

The worst of all? Another litigant who didn’t know her surroundings. In juvenile court once, the mother of a litigant wanted to ensure her son did not miss his case being called. When his case was called, the moth-er went to get her son. She announced to the court-room her son was in the bathroom. Using it. Seated or standing is unconfirmed, but his bathroom function wasn’t just to wash his hands for 20 seconds. The judge put them in the waiting room so she could do other court business while the juvenile finished his business. The judge did have to remind them of their virtual sur-roundings and to aim the device’s camera elsewhere, while the courtroom’s attorneys and other staff lost their poker faces.8

In closing, like visitors to another country whose stay was extended, being fluent at this foreign language of Zoom may be out of the question, but being con-versational may prove