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A New Rule of Evidence: The Effect of Immigration Status in Illinois Civil Proceedings

By Patrick M. Kinnally

July 2020

The Illinois General Assembly, following other states, has enacted a new rule of evidence that applies to civil proceedings. S.Ct. Washington, Evidence Rule 413 (2017); California Evidence Code, 351.3, 351.4 (2018) This law, which is not a Supreme Court Rule, announces, with some exceptions, that evidence related to a person's immigration status is not admissible in any civil proceeding with certain exceptions. 735 ILCS 5/18-2901. This statute, effective January 1, 2020, states:

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Going the Distance

            At the conclusion of Sunday service, after catching up with friends and saying good-bye, Jason got in his car to drive home. It was a sunny, late summer day.  He was looking forward to a quiet afternoon with family. The route home was familiar, one he had taken hundreds of times before.  As he approached the busiest intersection on his way home, he could see his light was green. He had the right of way, so he believed he could proceed through safely.  That confidence was shattered seconds later when a truck traveling the other way suddenly turned left in front of him. Jason reflexively reached for the brake but there was no time. The collision occurred almost instantly. What followed was the deafening sound of crushing metal, shattering glass and the unimaginable pain of a broken body.

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Meeting the Challenge

We hope you and your family are well. The coronavirus has made this a challenging time for everyone. We want you to know, however, that your case or legal needs remain vitally important despite the crisis. Our top priority is moving forward but doing so safely. We will follow the recommendations of public health authorities to ensure your well-being and the well-being of our community.

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Jurisdiction Stripping and the Presumption of Judicial Review: Who Gets to Make the Call in 2020

By Patrick M. Kinnally

February 2020

To many practitioners, including myself, Congress’s authority to strip federal courts of jurisdiction to hear certain cases, emanates in our politic because Congress does not like what federal judges might rule, or more probably it wants to control the outcome from the beginning. This seems troubling. Patchak v. Zinke 137 S. Ct. 2091 (2017) (Patchak)

Yes, Congress has the power to enact laws, even ones which define or limit the jurisdiction of federal courts. Do legislators have the authority to tell a court to dismiss a case based on statute they create? Or, prescribe a certain outcome in single controversy? See Peck “Congress’s Power Over Courts; jurisdiction Stripping and the Rule of Klein,” Congressional Research Service (August, 2018) (Peck).

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Promises Kept and Unkept and Quasi Contracts

By Patrick M. Kinnally

December 2019

Recent opinions in Illinois courts have brought into focus contract enforcement in both private and public settings. As to the former, at least as to voluntary unincorporated associations (765 ILCS 115), the likelihood of strict construction as to a party's ability to contract is paramount. 1550 MP Road LLC v. Teamsters Local Union 700, 2019 IL 123046 (" MP Road').

Apparently, it can be different where municipal actors are involved. Our appellate court has restated what appears to be a remedy which is simply restitution. It is called "quasi-contract." Restore Construction Co. V Board of Education, 2019 11.App.(1 st) 181480 (" Restore'); and Karen Stavins EnteIprises v. Community College District 508, 2015 I1.App.(1 st) 150356 ("Stavins'). But before we get to that analysis, let's go back and review what we all learned in our 1 L contracts class in years past.

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Pleading Guilty in Illinois Courts: A New Judicial Admonition Rule

By Patrick M. Kinnally & Cindy G. Buys

November 2019

Due process requires that acceptance of a guilty plea be a "knowing, intelligent act[] done with sufficient awareness of the relevant circumstances and the likely consequences."1 In light of this commandment, the Illinois legislature passed a law in 2004 requiring that state judges admonish defendants regarding the possible immigration consequences of a guilty plea prior to accepting that plea.2 Unfortunately, not all judges complied with this command. As a result, some foreign defendants accepted guilty pleas not knowing the consequence would be deportation. When they discovered the immigration consequences of the guilty plea, some attempted to vacate their plea on the grounds of lack of notice and take their chance at trial, but the Illinois courts refused to provide any remedy for the judiciary's failure to comply with the law. 

To correct this problem and ensure respect for the original legislative intent, the Illinois State Bar Association, through its International Immigration Section Council, drafted an amendment to the Judicial Admonition Statute relating to guilty pleas.3 The new law,,i which Governor Pritzker signed on August 16, 2019, states: 

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Calling Out an Industry

AURORA, ILLINOIS - MARCH 2019

It was only the second work day of the new year. Optimism was still high and holiday memories still fresh. She got up and went to the office job she has enjoyed for over 20 years. About mid-morning, she walked into the file room. And in just the blink of an eye, her life changed forever. Five years later, after multiple hospitalizations, four back surgeries, one shoulder surgery, and one spinal cord stimulator, she is left with an uncertain future of chronic pain, walking aids, depression, and the inability to ever work again.

What turned her life upside down was a carpet manufacturer that put profits ahead of safety. Rather than reform its manufacturing and quality control procedures, it sold to the public carpet tiles which had a built-in tendency to curl at the edges and corners. It did so knowing that “upcurl” created a tripping hazard for busy workers doing their jobs in the high traffic commercial environment for which carpet tiles were designed. The specific tiles that changed this life contained “substantial” upcurl and should not have been sold according to the company’s own standards.

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A keepsake: The Due Process Clause in civil litigation-People v. Gawlak

By Patrick M. Kinnally & Cindy G. Buys

March 2019


In the civil litigation fray, sometimes we get lost in motions, discovery, a new evidence code, briefing schedules and memoranda of law. Fundamental concepts such as the right to counsel under the Due Process Clause right to have a private attorney assist in civil litigation get overlooked in the maze of special interrogatories, requests for admissions, or perhaps a new jury instruction on implicit bias. Let's stop for a cup of coffee. 1


More than eight decades past, nine African American men, 20-years-old or younger were accused of raping two white woman while hoboing on a train in the rural south. They were charged in Alabama and convicted in three trials held within days of arrest. They claimed their lawyers, privately retained were not afforded time to prepare for their criminal prosecution hearing. Indeed, they were not. Our Supreme Court so held
in Powell v. Alabama.2


The issue in Powel/was not the 6th Amendment right to counsel in a non-capital felony case. That guarantee would not be realized until Gideon v. Wainwright, 372 U.S. 335 (1963), thirty years later. In Powell the court noted:

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Making a Difference

AURORA, ILLINOIS - FEBRUARY 2019

A call comes out of the blue. Your elderly but vibrant parents have been seriously injured in a car accident, and both are clinging to life in a remote hospital. Your brothers and spouses rally support. You put your lives on hold for months while you care for the mother and father who cared for you. Despite a valiant struggle, and the uncommon devotion of a special family, your Father slips away. Your Mother survives but faces a lonely and uneasy future. The tranquility of your world has been shattered. As you all search for healing, justice emerges as the essential first step.

The privilege of helping this remarkable family fell to Pat Flaherty, Maggie Mayer CP and his partners at Kinnally Flaherty Krentz Loran Hodge & Masur P.C. They fought rentlessly to identify the wrongdoers and to establish the legal responsibilty corporate entities sought to avoid. Once they were cornered, once the evidence became insurmountable, they capitulated. They recognized the pain and suffering they imposed and the specialness they destroyed. A $9.5 million award will stand as validation of the family’s loss and of its commitment to making a difference. Corporate practices will change because of their courage, and society will be a little safer.

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Presumptions and powers of attorney

By Patrick M. Kinnally & Cindy G. Buys

July 2018

Recently, the appellate court filed an opinion that, on first reading, seems innocuous. It hardly is. The facts of Collins and Richard v. Noltensmeie? are not complicated.

married or had a civil union. Billy had a terminal illness in 2011. A week before he died, he appointed Patricia as his agent under an Illinois Statutory Short Form Power of Attorney for Property ("POA"), and as his sole beneficiary under his will. Under the POA, Patricia had the "power to make gifts, exercise powers of appointment, name or change beneficiaries under any beneficiary form or contractual agreement." This provision would appear to imbue Patricia with broad powers. It would seem to be what Billy wanted Patricia to be able to do with his property. Yet, this is not what happened in Collins. 

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