Category: General Litigation

General litigation matters, plaintiff and defendant representation

Bankruptcy, General Litigation, Real Estate

MORTGAGE FORECLOSURES & JUDICIAL SALES ARE ABLE TO GO ONLINE IN 2025

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A new development for those interested in purchasing properties at foreclosure auctions.

Effective January 1st, Illinois law permits the sheriff or other persons conducting judicial sale of real estate in mortgage foreclosure proceedings to do so either in person, online or both. 735 ILCS 5/15-1507(b)(2).

Of course, one goal of the change in the law is to help to expand the number of people interested in and able to attend auctions.

The new rules for this online sale procedure at included in the Mortgage Foreclosure Law at Section 15-1507.2.

Interested bidders should be aware that the person/entity conducting the sale can add a fee for associated costs of the online sale provider, and the supervising court must be satisfied with the process and procedure for the online auction and record-keeping steps, and bidders registration will be set up to assure pre- and post-sale communication and compliance.

We will be watching for updates from the Sheriff’s Office and most-used judicial sales entities, to keep our clients advised.

General Litigation

The Bombastic Opposing Counsel; A Burden Or A Blessing?

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Decide if you want your Attorney to be an expensive pitbull or a thoughtful advocate.

In litigation or in a transaction, you and your counsel may find that the attorney on the opposite side is less than cordial. Personalities being what they are, this is not unusual and typically not a problem for the practitioner who is used to dealing with multiple personalities. Diverse experiences, diverse cultures and a multitude of styles are the norm in the practice of law, not the exception. Creative arguments, creatively expressed, is often the hallmark of a skilled attorney.

Issues unique to the practice of law will often seep into the activities at hand. Most lawyers have an ego. This is good, as it is useful when necessary for the attorney to be a zealous advocate for the client. But it is often the case that large egos need to be fed or flattered, and sometimes the ego-driven lawyer needs to “win” every court battle and needs to win every comma, semicolon and clause of the lease or the contract.

Then there’s the fee conundrum.

When an important deal is being negotiated, or a case is being litigated in court, several concerns may arise that put a spin on the issue. The saying “Time Is Money” has a real meaning for the lawyer and client, because in many instances the attorney fee relationship is based upon an hourly fee agreement. The need for unnecessary dialogue, court appearances or document drafting (and re-drafting) that result from a troublesome opposing attorney can become, well, tiresome to the attorney and financially frustrating to the client.

Does the client expect to be billed for the back-and-forth? Or does the client expect that their attorney will take the high road and pick the battles carefully? Some clients want to battle as much as the pompous lawyer on the other side, but later do not want to pay the additional hours for the experience! Attorneys will fight to every last drop of the client’s money, if that is the client’s direction. Cents and sensibility often win out.

Is there a strategy that can accomodate all of these considerations and turn lemons into lemonade? Most times the experienced attorney can do so.

The seasoned attorney knows that if the situation is made known to the client early and often (without whining), then the tactful display of fending off the offensive lawyer can be a boone to the attorney-client relationship. The attorney can demonstrate to their client a greater familiarity with the area of law, can demonstrate their strategic use of legal tools and practical experience, and can even display the attorney’s enhanced problem-solving skills. In court cases, every attorney knows that you win some and you lose some in the continuing press for the settlement or verdict, and if the client is properly advised then the client’s expectations and own feelings will often be reasonably addressed. The result is frequently a more solid attorney-client relationship and a mutual respect for the way that the situation was handled.

Then there is the occasional time, when the bombastic opposing lawyer demonstrates in living color in the courtroom or the conference room, and perhaps even in the presence of their own client, that the lawyer’s style (or personality flaw) and the absence of a volume button has done a disservice to their client. The lawyer cannot stop. They need to have the last word. The lawyer cannot realize where their excessive argument has taken them because their personality must view every encounter as a cage match where the opponent (or Judge) needs to tap out as sign of total defeat.

The lawyer is too wound up in their own bluster to see that those with them in person or on a zoom video conference, with others present (including their own client), are rating the argument a 5 out of 10 but the lawyer’s tactics and presentation a minus 3!

Even if the Judge or others in the encounter select their words and approach to mollify the bombastic lawyer, you know and your client knows and even the opposing lawyer’s client knows that the arrogant, blustery lawyer has lost.

When I see or hear of these situations, it is in that moment that I know what was meant by a thoughtful attorney who aptly explained to me forty years ago when he said to “be careful not to snatch defeat from the jaws of victory…” 

General Litigation, Limited Representation

Is Your Lawyer Using Creative Billing Methods? We are.

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Alternative Fee Arrangements Are Useful. And We Use Them.

The typical lawyer billing model uses hourly billing for Attorney time and Law Firm Staff time devoted to the case or project. 

The Hourly Billing Model is typical.

Each hour or fraction of an hour that the Attorney or Staff spends on the client project is included in the Attorney Invoice. Usually, this is at a quarter of an hour increment or a one-tenth of an hour increment. “Billable” time includes all time spent, such as communications with the client or others, research, document preparation, time for court or other activities (including in most instances travel to/from the location of the project).

Have you discussed with your Attorney the use of a Flat Fee Billing alternative?

This method uses a value-based approach to Attorney services by fixing the Attorney fee to the type of service. For example, Marc D Sherman & Colleagues PC often provides Flat Fee Billing rates for Client projects such as: Preparation of Wills, Trusts and other Estate Planning materials, for creation of a business entity like a Limited Liability Company or other Business Corporation, for residential real estate transactions, for Deed Transfers, and for other projects.

Using Flat Fee Billing sometimes includes the out-of-pocket expenses involved with the project, like filing fees or recording fees. But the regular practice at our Law Firm is for the expenses to be invoiced separately from the fee charged to the client. Ask your Attorney what those expenses may be and how they are paid.

Contingent Fee Billing May Be Applicable In Some Circumstances.

In some cases, usually certain types of litigation like personal injury cases, the use of contingent fee billing is arranged in order to provide the client with a reasonable basis for the Attorney Fee that is related to the results of the case. In this way, the client may only be responsible, say, to pay the Attorney a fee based upon one-third of the award to the client. At our Law Firm, the nature of our work does not often include cases where Contingent Fee Billing is appropriate.

You should review contingent fee billing agreements carefully. Is the fee payable when the award is announced? Or is the payment of the fee contingent upon the recovery of the award in collection.

Hybrid Billing Arrangements May Be Worthwhile For Both Client And Attorney.

The Attorneys at Marc D Sherman & Colleagues, PC may suggest that a hybrid billing agreement is advantageous for both the Law Firm and for you.

Consider this example: You and two friends are looking to create a new LLC entity. An agreement may be made with our Law Firm for the organization of the entity for a flat fee billing rate, and then for an hourly billing rate to be applied for representation for the creation of the Operating Agreement due to extensive work among the several new LLC Members who require a detailed Member agreement for buy-sell purposes or to include other protections to be negotiated between the Members and memorialized by the Attorney.

In that example, hourly billing may also be appropriate for creation of the new LLC business policies, employment agreements, independent contractor agreements, or contract terms and conditions appropriate for the type of business.

Get it in writing, including the Attorney Retainer Deposit.

You should expect that the Attorney-Client Engagement, including the billing agreement, will be in writing. The Engagement agreement and the fee discussion should be understandable. Ask questions, so that you are sure that you understand the Law Firm expectations and your own responsibilities.

In most instances, Law Firms expect the client to deposit a retainer payment. This is an advance deposit that will be applied to the services and expenses for the client’s case or project. There are different types of retainers, so ask the Attorney to explain the reason for the retainer, where the retainer will be deposited, and how the retainer will be applied to legal services and expenses. 

And Don’t Forget That The Fee Agreement May Need To Be Modified.

It is appropriate for an attorney to modify a fee agreement under certain changed circumstances. This means that our Law Firm may reasonably suggest a change to the fee agreement in situations that are understandable: For example, if the nature of the case or project changes significantly because of outside or unexpected forces or because of the client’s directions. Or, if the client’s own circumtances change, such as a business entity organization that begins as a single-shareholder project and turns into the organization of a multiple-shareholder project.

The Attorney Fee Agreement will often anticipate changes in circumstances, such as changes in the Attorney’s hourly rates over the life of a case that may take years to complete. But even if these changes are not specifically anticipated, changes are appropriate as long as they are reasonable under the circumstances.

Check Out Limited Scope Representation or Unbundled Services.

There are times when the client’s needs are only related to certain limited elements of the legal project or case. For instance, in a small claims case, the client may want Marc Sherman to only provide certain services – like preparation or review of the Complaint to be filed, or assistance with preparation for a motion to be presented in court or for a trial that is scheduled to take place.

Sometimes the client wishes to hire Marc Sherman to only handle parts of a court case, like contested motions or pre-trial or trial aspects of the case. The Illinois Attorney Professional Rules allow Attorney Sherman to file a limited appearance in the court case, and the Attorney Fee Agreement will set out the basis for the Law Firm billing and the expenses. The Fee Agreement will also identify the limitations on Attorney Sherman’s responsibility for the elements of the case.

Next steps? Attorney Fees and Billing can be confusing for even long-standing clients. If you have questions about Attorney Fee Arrangements, alternative billing approaches or other considerations discussed here, or if you have an agreement with another Law Firm that you feel should be reviewed, reach out to Marc Sherman by phone to (847) 674-8756 or by email to msherman@mshermanlaw.com.

General Litigation, Real Estate, Real Estate Sales and Purchases

WIRE TRANSFER INSTRUCTIONS: PLEASE READ

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Wire Fraud is on the rise and is a very real threat. Marc D Sherman & Colleagues PC and its Of Counsel Attorneys and staff spend significant time representing residential and commercial buyers and sellers in a variety of real estate transactions. Our Firm typically does not send wire transfer instructions for external purposes, such as real estate earnest money deposits or for funding real estate closings.

If you receive an email from our office including wire transfer information, call and confirm that it is intentionally sent by us and that the information is accurate BEFORE using the instructions.

If Wire Transfer Instructions are provided to you by a third-party, such as a title company or lender, it is recommended that you (1) confirm that the email is from a legitimate, authorized source, and (2) if so, then follow the steps that are stated in the email communication in order to ensure that the communication is legitimate and to confirm the instructions are valid, or contact our office.

For further questions, you can reach one of our Attorneys or staff at the Contact Information shown in this website.

Business Entities, Employment Matters, General Litigation

THE ATTORNEY-CLIENT PRIVILEGE IS WORTH KNOWING ABOUT

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What is the Attorney-Client Privilege?

You have the right to have all of your communications with your Attorney, or prospective Attorney (yes, even before formally engaging them), be treated as confidential, whether regarding a legal matter for which you are seeking Attorney advice or involvement or discussion of matters for which the Attorney’s advice is helpful or necessary.

The Attorney-Client Privilege allows you to prevent disclosure of conversations, letters, e-mails, facsimiles and other forms of correspondence and communication between you and the Attorney and Law Firm staff representing or consulting you, in almost all circumstances. This information is held in confidence and should not be disclosed to others, except where you have directed the Law Firm to do so.

Why is this important?

The privacy of your confidential information, regardless of the form, has a value to you. Confidential information contains valuable, private information simply because it is non-public or possibly because it may be used against you if it becomes known by others. The law protects your right to limit disclosure of sensitive information, so that your discussions with your Attorney or prospective Attorney can be open and transparent.

Isn’t this just for litigation situations? No.

The Attorney-Client Privilege is important in a variety of contexts. Consider a new business or product idea that could be hijacked by others. Consider the timing and specifics of business plans and strategies you may be implementing. Consider your thoughts about actions against an employer or, on the flip side, the steps to be taken as an employer in dealing with the workers or vendors for your business. 

There are many, many reasons why protection of your communications with your Attorney and Attorney staff can and should be considered.

What do I specifically do?

Since the privilege is yours, you also have the power to maintain it and the authority to waive and forfeit the Attorney-Client Privilege.

Your own verbal communications with the Attorney or Attorney staff will usually be considered to be protected. However, whether as an individual or as an owner or employee of a business entity, be mindful of two things: You can lose or “waive” the Privilege if your private communications happen to include or happen even to be near others who are not within your protected circle and can see or hear your intended private information. Also, you can waive the Privilege if you are sharing or disclosing the contents of Attorney-Client protected communications with another who is not in a position to share the Privilege.  

If you are a business owner or management employee communicating with the business Attorney, keep in mind that circulating a privileged email, memo or the substance of the communication between you and the Attorney can later affect the ability of your business to prevent its use or disclosure.

Best practice: Start by protecting your privilege and your private information by doing the following:  

Include a header in written correspondence or the “regarding” line in your emails with your Attorney stating that the document or the information is expected to be part of an Attorney-Client Privileged Communication. Or, at a minimum, identify the communication as “Attorney-Client Communication” or similar words.

Of course, give thought to the persons that you join as recipients in the email or to whom you circulate your documents and correspondence. And, be thoughtful of where you are having your Attorney meetings or who is on the call or email chain with you.

And equally important, be sure that you are individually or for your business, keeping your eyes on the other available tools that you have under the Law for protecting your confidential information, trade secrets and the like.

If you are not sure, ask your Attorney. Marc Sherman can be reached at msherman@mshermanlaw.com for further explanation, if necessary.