Jacqueline Carroll Obtains Appellate Win Affirming Summary Judgment

We are thrilled to have former Assistant State’s Attorney, Jacqueline Carroll on our team at the Bernstein Law Firm.

Prior to joining the Bernstein Law Firm in September of 2017, Jacqueline was an Assistant State’s Attorney at the Cook County State Attorney’s Office for over eleven years. She spent five years as a criminal prosecutor and six years representing county employees in civil cases, primarily in Federal Court.

During her time as an Assistant State’s Attorney, Jacqueline, and her co-counsel, successfully obtained summary judgment on behalf of their clients, convincing the trial court in the Circuit Cook County that the Plaintiff failed to sufficiently establish claims for malicious prosecution and intentional infliction of emotional distress.

The Plaintiff subsequently appealed, and on November 17, 2017, the Illinois Appellate Court, First Judicial District affirmed the trial court’s ruling based upon the appellate brief authored by Jacqueline.

For more information on Jacqueline Carroll or the Bernstein Law Firm, visit our website at www.bernsteinlawchicago.com.



Seventh Circuit Judge Ilana Rovner’s Opinion on the Brendan Dassey Confession and his Subsequent Conviction

Emmy-winning Netflix Series ‘Making a Murderer’ has continued to generate controversy since its premiere in December of 2015. One of the series’ primary focuses, Brendan Dassey, was sentenced to life in prison for the murder and sexual assault of photographer Teresa Halbach in 2007. Since then, public awareness and scrutiny of unethical interview techniques used by police officials has come to the forefront. Dassey was only 16 at the time of his confession, and Rovner’s Opinion asserts that authorities took advantage of Dassey’s youth and cognitive disabilities in order to coerce him into a confession. During the interview process, Dassey was fed leading questions, and interviewed on four separate occasions without the presence of a legal guardian or legal aid. Investigators were said to have discouraged Dassey’s mother, Barbara Janda, from being present during the interviews. Dassey ultimately confessed to the murder of Halbach on March 1, 2006, one year after murder was said to have taken place.

Dassey, now 27 years old, is currently incarcerated at Columbia Correctional Institution in Portage, Wisconsin, serving a life sentence with eligibility for parole in 2048. Oral arguments for the “en-banc” re-hearing will be heard on September 26, 2017 in Chicago, IL. An en banc review involves the entire panel of judges rather than just the panel who made the initial ruling. This rehearing has sparked much discussion. In Rovner’s Opinion, Dassey’s age at the time of the confession and the absence of a parent or guardian should render the confession inadmissible. Rovner states “Courts must pay close attention to voluntariness when manipulative interrogation techniques are used, particularly on the young and intellectually challenged.”

Today, Dassey asserts his innocence and claims to have been manipulated and pressured by police officials during the time of the investigation. Dassey’s case is not exceptional. Many other cases of children, teenagers, and young adults with cognitive impairments have been scrutinized over the years. After the success of Making a Murderer, Netflix premiered another crime docuseries, The Confession Tapes, about coerced confessions, like Dassey’s case.

For more information on Brendan Dassey’s case and conviction, check out the Netflix docuseries. You can also read Judge Rovner’s full Opinion below.



James Trail Obtains Dismissal in a Multi-Count Securities Fraud Case

James Trail’s successful dismissal of a multi-count securities fraud complaint filed in the United States District Court for the Northern District of Illinois against one of the firm’s clients, recently resulted in a front-page article in the Chicago Daily Law Bulletin (Howe v. Shchekin). In a published opinion (238 F. Supp. 3d 1046 (2017), U.S. District Judge John Z. Lee rejected application of the “continuing fraudulent scheme theory,” as applied by district courts outside of the Seventh Circuit, and affirmed the district’s position that statutes of repose are not subject to equitable tolling. James succeeded in arguing that plaintiffs could not rely upon his client’s (Shchekin) alleged misrepresentations that occurred outside the operative period of repose. This was James’s second published dismissal (Babin v. Shchekin, 2017 WL 403568) in a related securities fraud case for the same client. Below you can read more on the Howe vs. Shchekin case.




Have you been sued and it’s the fault of your former attorney: How long until you are precluded from suing the real party responsible?

Have you been sued and it’s the fault of your former attorney: How long until you are precluded from suing the real party responsible?


Five years ago you engaged the services of an attorney to represent your interests in a certain transaction. All of a sudden the transaction is being challenged and you have been sued. It quickly comes to your attention that the pending litigation is a result of inaccurate legal advice given by your attorney three years ago. What are your options and how quickly must you act?


First, engage the services of a qualified attorney to help navigate you through the difficult to understand area of law that is contribution and indemnity.


Second, consider bringing a claim for contribution and/or indemnity against your former attorney. “[T]he right of indemnity and the right of contribution are separate and distinct theories of recovery and are mutually exclusive remedies for allocating the plaintiff’s damages.” Kerschner v. Weiss & Co., 282 Ill. App. 3d 497, 502 (1996). The decision about whether to bring a claim for contribution, indemnity or both – recognizing you will ultimately only be able prevail as to one theory – against your former attorney is a difficult decision made by analyzing the facts of each specific case and weighing them against the elements necessary to prove each theory. The factors and analysis used to determine this decision will be discussed in a later article. For the purpose of this article, we will focus only on how quickly one must act to bring either or both of these claims against his or her former attorney.


Illinois statute of limitations to bring a claim of contribution or indemnity “where an underlying action has been filed by a claimant” is as follows:


No action for contribution or indemnity may be commenced more than 2 years after the party seeking contribution or indemnity has been served with process in the underlying action or more than 2 years from the time the party, or his or her privy, knew or should reasonably have known of an act or omission giving rise to the action for contribution or indemnity, whichever period expires later.


735 ILCS 5/13-204(b). At first blush, the answer seems simple: a party has two years from the time it is sued to bring an action for contribution or indemnity against its former attorney. In reality, the answer is not so simple.


Illinois law provides a statute of limitations to actions specifically against attorneys. The statute provides:


An action for damages based on tort, contract, or otherwise (i) against an attorney arising out of an act or omission in the performance of professional services . . . must be commenced within 2 years from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.


735 ILCS 5/13-214.3(b). In the scenario outlined above, it appears that the party being sued would be precluded from filing an action for indemnity or contribution against its former attorney because the act or omission of the attorney occurred at the time of the transaction – meaning the party could only sue its former attorney for the 2 years immediately following the attorney’s representation in the transaction in question. This outcome is seriously prejudicial to clients, especially clients represented by attorneys for transactional-type services, in which the inaccurate advice of the attorney may not be discovered for several years after the transaction took place.


Luckily – for clients at least – the law is actually not as harsh at it seems. The key is the language at the end of the statute applicable to attorneys: “from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.” “For the purposes of a legal malpractice action, a client is not considered to be injured unless and until he has suffered a loss for which he may seek monetary damages.” Blue Water Partners, Inc. v. Edwin D. Mason, Foley and Lardner, 2012 IL App (1st) 102165, ¶ 49. Therefore, the statute of limitations for a party to sue its former attorney does not commence unless or until the party suffers a loss in which it can seek monetary damages (e.g. a judgment).


Arguably, a party suffers damages when it begins incurring attorney’s fees to defend the action allegedly caused by the former attorney. However, “incurring of additional attorney fees may trigger the running of the statute of limitations for legal malpractice purposes, but only where it is clear, at the time the additional fees are incurred, that the fees are directly attributable to former counsel’s neglect.” Lucey v. Law Offices of Pretzel & Stouffer, Chartered, 301 Ill. App. 3d 349, 355 (1st Dist. 1998). Exceptions to the rule are always possible, but will depend on the unique facts and circumstances of each case.


Despite the requirement that a party suffer a loss prior to the statute of limitations for an action against its attorney commencing, a party does not have an endless amount of time to bring an action against its former attorney. The statute pertaining to actions specifically against attorneys includes the following limiting language:


An action . . . may not be commenced in any event more than 6 years after the date on which the act or omission occurred.


735 ILCS 5/13-214.3(c). Therefore, a party may only sue its attorney for an act or omission in the performance of professional services for 6 years following the act or omission. Even though the statute limiting actions against attorneys appears – at first – to unfairly limit client actions against former attorneys to 2 years after an attorneys act or omission, it is actually somewhat forgiving and allows clients who find themselves in a lawsuit as a result a former attorneys inaccurate advice at least some time to bring an action based on theories of indemnity or contribution against the former attorney who is actually responsible.  Again, if you do find yourself in situation such as the one describe above, the best advice is to always contact a qualified attorney as soon as possible.


James D. Trail