good morning everyone to call the dr today thursday september twenty eighth two thousand and eleven the first case is agenda number twenty two case number one eleven seven ninety two santiago versus lot of ramifications for plaintiffs and plaintiff's attorneys as well the appellate court after considering all the possible bases of sanctions concluded that sanctions were burden on plaintiff's attorneys the appellate court found that plaintiff's attorneys could be found could be sanctioned under rule one thirty seven if they don't conduct a reasonable investigation briefs that common law of illinois has held for many years that you can change your name you can assume nail us at will and you can use that name for all purposes including wheedle and all statutory purposes so if you assume an alias which is how you are known to everybody around you how you present yourself to the world there is no reason you can't proceed in court under that name he used his birth name several times while he was employed and he also used the name juan ortiz his alias several times cia state id card and in one name and his driver's license and other name i mean he actually knew what he was doing going there he did he did well i think he used mostly one artie's for about fifteen years for employment purposes he used his birth name only when he first came to the united states that he mostly used one or t's i think he he was known to most people his coworkers his employers i think that there are certainly family members who knew him by his birth name and and and friends but for purposes of the business of his life he used the assumed alias how can you argue this is a misnomer ok i argue it's a misnomer because for purposes of filing the complaint it's how you were known you there is a real person you know who this person is and so it's a misnomer in that he could say he's his birth name or he could say that  wasn't a misnomer we would submit that it could be viewed as a misnomer won't you argue with respect to the first point that he had an absolute right to use the name and intentionally used to mean one or two years yes you know for the purposes of the fact that it wasn't for argument and this was an abuse of discretion with for the judge to throw doubt on their peers very well candidly at the trial court level the judge denied all defendants motions to dismiss and allow plaintiffs motion to amend his complaint to add his name it was only after those motions were ruled upon that the trial court then decided to certify this question because there was no guiding law in on the questions with respect to whether or not he could use this name you argued that he can use any name you know any name and and he used one or two uses that name intentionally use that name but my first question to you peepin with work just as burke said was doesn't the second issue control the amended complaint is filed after the statute of limitations so you have to urge you relates back and to argue relates back you don't say anymore that he intentionally used that and you said it was a misnomer so which is it is it a misnomer which is a mistake for purposes of relation back and that's dispositive or is he intentionally using the name is a right to use well i think he's intentionally using the name he has a right to use but i don't i don't mean just  focused on and how does it relate back under that if misnomers mistake in one or two years is not that name is not a mistake how does relation back apply for purpose of the stage of limitation ok well i would argue the point that he has the absolute right to use either name so if you use he and he has the same person he's either mr santiago or mr ortiz being the same human being so if you get to the relation back argument it's just how he identifies himself it doesn't change who he is doesn't change the injury that he sustained at his place of employment in the operation of machinery nothing changes typically in relation back there's something that changes and a mistake a misnomer is allowed because it doesn't change any of the pertinent facts of the case it doesn't change the nature of the case doesn't change it doesn't there's no prejudice that's recognized to the defendants which is why misnomers a lot so the relation back which should be allowed because it is the same person nothing has changed so there is no prejudice by the end they are legit prejudiced but at the trial court level they couldn't specifically identify any particular prejudice in fact the trial judge afforded them an opportunity to read oppose the plaintiff to ask any additional questions that they might have relating to his identity or any information that might be might have not received because of only receiving half of his identity but that's don't lawyers generally look into backgrounds the person who's filed the complaint you know maybe financial backgrounds anything criminal their ground or anything like that and if they're looking for the this one or tease that they would come up with something else they would come up with real identification in the  i would argue under this case there is no prejudice because he was primarily known as one or two yes there's there is the defendants could not cite any particular piece of information to which they were shielded or misguided by because of his use of of the alias name because he when he was seeking a employment in this country he needed an alias correct and that would be a major procure work to support their families that we have not that would be helpful to turnitin no you know last i agree i don't disagree with that on the other hand i think you have to look at these as a kid in a case by case basis and in this case there was no prejudice that accrue to the defendants if they're with they even thought there was they might have availed themselves of the opportunity afforded them by the trial court to pursue additional discovery they didn't that speaks loudly that there was no actual prejudice there could speak under certain circumstances as in the cases that were cited by the appellate court those federal court cases the seven alias for purposes of gaining employment illegally i yes he did but we have to look at the other the law as it stands which affords a right to all illegal aliens to seek redress in the courts and the state the question here isn't whether he could pursue his his remedy it's whether he could pursue his remedy using his alias name to which he was known to his employer to pursue his remedy under his birth name would necessarily cause him to reveal information to his employer which would result in his employer being obligated to dismiss him under the federal law immigration so the question is do i pursue my remedy in and in court or do i forego that remedy because i want to maintain employment but that's the conundrum that faces the illegal aliens here i think we could look at this case in another way if we looked at if we took took it out of the context of illegal alien and other types of people who assume aliases like like movie stars if this case were filed in the name of i think it's bernard schwartz or tony curtis his real name is bernard schwartz it would would there be any question that we know who tony curtis is that we know all about tony curtis would there in the relation back going to your argument or your question about the relation back is there a difference between  you if we say well his motive was you want to employ it because he is an illegal alien or we condoning illegal activity by saying well you know he was in the conundrum you describe i i i  don't believe so because if he used his real name to pursue his legal remedy he would still have the right to pursue his legal remedy so why would he not be per permitted to use his alias to pursue his legal remedy if you know if we are using the tony curtis example would somebody file a motion is that is that subject to a motion to dismiss a few files in his in his adopted alias do you agree that you are subject to code a civil procedure fires last two days for one c that says a party applications for good car show parties may appear under fictitious names the plaintiff would submit that that's not applicable here because a fictitious as defined under for a one is a name adopted to shield the identity of the plaintiff the purpose of of for a one is to provide for you sir he was doing  with his employer or he came up with a new name to shield his identity i would submit that the adopt an alias in an effort to secure employment i think that could he have secured employment in his birth name he would have there was no there was no intent to deceive so under and we're going to use his real name because he couldn't have secured employment because he was in the country illegally  it's not shielding because it's because his right to access to the courts is not impacted by his status as an illegal alien so i there's the distinction is he has a right to access to the courts illegal alien or not does is he forced to assume to use his birth name or can he use his assumed name or alias i see it's the same person it's the same information it's the same identity is the focus the test the threshold is that the use of the name for purposes of gaining employment originally or is it the use of the name and any prejudice or or ramifications from it with the use of that name in this lawsuit for the subject matter of the case and that's a claim for damages for injury sustained as an employee i mean are there two different ways to look at this yes which i think i might have been artful and in artful in trying to describe it his his claim for damages suggesting you were i just want to make sure right there are it is different i mean it once you once you get to the point where you accept that illegal aliens have a right to pursue a remedy then you ask does can they can they use that alias that they've been known by and worked under the second for with our common law and our statutory law and i would submit that it does comport with the common law and i would further submit that it does not it does not violate for a one section for a warrant because it's not a fictitious name it's not intended to deceive the court  the judicial system or the judicial process that's what for a one gets to so is there any sanctionable current doctor at all i think in in situations like this you have to look at it at a case by case basis and in this particular case i would say no there's no sanctionable conduct because no no prejudice accrues to the defendant and this plaintive never provided the defendants with false information like some of the other cases did he didn't provide a fall social security number in his answers to iraq a tori's he didn't provide a false birth date he used his alias and his and his address counsel i think there's no question common law you could one could adapt a name one wish however you seem to ignore the qualification posed on that rule by this court in nineteen thirty three and rankin when you when you discuss that is that it's only valid if that's your action does not interfere with the rights of others and that isn't that the case here places adoption of the atheist interfere at least the right of the there's no prejudice so to the defendants so i think that he has an absolute right to use his his alias was there anything in the record that we can look at that talks about another saying this is the focus but if we were to focus on this on the circumstances when he was hired and what the employer looked at employment documents i don't know i don't believe so because this is the third party case against this machine manufacture distributors maintain people who maintained it so i don't think there's anything in the record that relates to what his employer knew or didn't know how he represented himself to his employer it's clear that he represented himself to the plaintiff would submit that that he assumed and he didn't violate any he didn't violate for some rule for one or any of the other rules of the court in reviewing this case it seems to me that what we're dealing with here is some very significant issues this is a case about the truth the truth and mr santiago's absence of truth in the way he conducts himself in this matter it's also about i think maintaining the integrity of our judicial system there's no question about that as you know there was a certified question and counsel talked today a lot about the valley about the assumed aliases ileus but i want to remind you that the certified question that was before this before this court talks about the pla intentional a filing of a complaint using a fictitious name not an assumed it was that's the questions before this court and to trial and whether or not to dismiss this complaint the second image complaint as a sanction for the failure of mr santiago to follow the rules of this court and or to dismiss the case because it was filed beyond the statute of limitations i think the answer to both of those questions is yes i think what we need to do in this case is examine the facts very important in the consideration of this matter mr sandy i don't plan to enter this country illegally used his real name apparently according to his deposition for about five years then he used the name juan or tease for two to three years and he testified in his deposition that he used that name so he wouldn't have to use his name to get a beneficial as i think as we heard in the argument from the plaintiff that allowed him to get a job which otherwise let me ask you how did that name allow him to get get the job apparently judge it was he allowed he used that name to get a job because he was concerned perhaps a view of losing his status in this country using his ability to live in this country i guess i'm not being clear how does the name on our t s give him a better status to get the job than his real name i understand there were problems with his immigration status i wonder how the name   was a sufficient time after the complete was amended this was an error the the knowledge concerning his true name was not found out until much later only those factors but also the fact that there has been a great deal of time and money expended on pursuing this fictitious issue motions in court appeals and i think that and significantly he certify those answers that's one of the things that i think makes this case such that it does warrant the dismissal of the case as a sanction excuse me could you back up the certified act by mr ortiz or santiago and that rodriguez case louisiana i think the court the court's opinion is significant here it said that the plaintiffs conduct so violated the judicial process that imposition of the harsh penalty was appropriate and that's exactly what we're dealing with here mr santiago abused the system complaints it had the false or fictitious name this type of conduct cannot be condoned by this court it violates various a several rules then have to reach that mandatories thank you yes sir and i think under either point the second amount of complaint should be dismissed as a sanction number one and number two as the is identified after the statue of limitations has run and it does not relate back to counsel is it in the record whether or not mr santiago speaks english you know i believe fair sumption isn't it yes or i think it's also a fair assumption that counsel for the point of would have gone through the iraq authorities if necessary when span that was that's when i next question is there anything in the record indicating whether or not in iraq  tories were translated that was not only were proposed in spanish records of them they were not and there is no discussion of that in the record but again i think we can presume that an attorney representing the point of would do what is necessary to sure i'm clear on this actually get to question maybe three at the deposition no it is clear in the record that there was a translator yes all right now let me ask you this if a witness in a trial testifies even a party witness and makes an incorrect statement call it not true but then during the testimony before the case is over corrects that statement what is there a sanction do is there a mandatory strict liability sanction at the history of this case this is the finally of a complaint this is not done an afternoon at a trial obviously there is time spent meeting with the client there is presumably the attorney goes through the complaint with his client and files a complaint we look at iraq and tori's time is spent thoughtfully presumably going through those questions and answers so i right and this is really in response to the tony curtis example of the alias and i think you started by saying that this wasn't an alias this was a fictitious name to procure employment i look at the wording of the question that was the that was answered in the three zero eight appeal and it says when an injured plaintiff intentionally files a complaint using a fictitious name so it appears to me that at the trial court level there was an agreement between counsel that this wasn't an alias this was a fictitious name used first on purpose what's the import of that as it relates to both the first argument and whether or not it would be an abuse of discretion in light of that to issue this sanction and then the second argument is well whether it's a misnomer well i think that that's very significant i think at the time of the trial court level there was no objection by plaintiff's coun that this was not a fictitious name that's the way this question went to the appellate court so i think that's very clear that there is don't question at that time that would reveal him with was a fictitious name and  so i think for that reason alone the arguments about the alias are most i mean they're there they have no bearing no weight in this case because that's not what sports has to be consider i think that again because of mr santiago's conduct using this fictitious name an appropriate sanction is dismissal of this case and we get the second question relate back it's not a misnomer a misnomer is a mistake this was not a mistake mr santiago knew the name he was using he he was taking someone else's identity judge we know that to use this name to get a job that's what the discovery shows he used a fictitious name to get a job not because of it he did it with that you know his the value to him his deposition what we do know is that he intentionally used that name basically as a shield to secure employment he had a legal status and then he pursued that we don't know the answer that question because that was not discussed in his deposition but we do know if he is that he used that to gain employment he used a fictitious name to get employment just like the rodriguez plaintiff dead and that louisiana case he lied about his true identity to get a job that's how it started and he followed through in this case filing a complaint yes obligation to examine i think it's called an eye form and then the next wasn't discussed that was not discussed judge that was not it was not part of the discussion it's not part of the record and i'm just just for the record  the number i recall there may be another number but that's the one that employers are supposed to look at to verify that the person who presents for employment is in fact whether they're a u s citizen or have a proper visa are eligible for employment but we don't know if the employer we don't know and what we do know that he did at the minister of or t s a slave santiago was not a legal alien he didn't secure that status in fact this kind of interesting he apparently secured that status in january severe violation of our rules and it's because of this continual misuse of our system of the of the law of the statutes that mr santiago must be sanction this court has to maintain its integrity and mr santiago abuse that unsavory so for the reasons we've express we ask that you answer yes to both of those questions in the short if i question his complaint should be dismissed for the reason by reason of a sanction against him for his conduct and also that the complaint should be dismissed as the appellate court did with respect to the fact that at the second man a complaint was not timely filed thank you time is expired thank you his name i would not say that that's what the law defines as a fictitious name i would say the law defines that as an assumed alias a fictitious name by the cases that interpret what that means and for one is an identity assumed to shield the identity of the the true identity of a party line of so a fictitious name as was discussed in the dots and case in the seventh circuit and of course case in the eleventh circuit is intended to deceive the court the judicial system and and the defendants in the case ok so let's let's use that definition i told you earlier the trouble with this whole shield from your ok we have a certified question where the attorneys are agreed to use the term fictitious name that's not in question plaintiff objected to the orcutt's the word fictitious ok and going back to the intent of the parties to sheild we also have in this record the fact that he admits that he had used this fictitious name for really set i use this name because i want to interview someone i mean a break for now for purposes of related back you know if we only focus on that you say well it's a misnomer a misnomer would be a mistake if if he's if it's if we find that it's a fictitious name how could it be a mistake because that would indicate he's using it for purposes of affection rather than for the truth well  mistake is a misnomer is not necessarily always a mistake it might be a mistake it's also according to some of our treatise is means nothing more than a party style than other than his or her own name so it's a mistake it could be a mistake in some of the cases where they identify an ongoing business as a corporation when it wasn't truly incorporated that was a mistake to put the ink after the name but sometimes it can just be that your style than other than your own name tony curt the entire conversation here focuses on conduct of the plaintiff missing from this discussion is any conduct on the part of the defendants in causing injury to this p it's the truth no but it's getting to the idea of a sanction for just a the sanction of dismissal relieves the defendants  obligation to defend themselves in the underlying case in the injury to the plaintiff that's the injury to the plaintiff is a fact whether you were to discussing it at the moment now do they all of the sets of iraq authorities yesterday and all of the sets of in iraq the tories that were proposed for to the to where he gave his name that were propounded on mr ortiz asked only what his name was his address his marital status is birth questions about your name and your social security number but they don't ask it doesn't ask about whether you've been known by another name or not just for one quick brief second i want to distinguish this case from the rodriguez case committed identity theft in his answers to in iraq the tories he provided a complete alternative identity his name social security number date of birth he completely assumed the identity of another person it was only through social security records that that his true identity was revealed in addition after the defendant became aware that there was a  identity for lack of better word he refused to confess to that fact and it took the defendants many thousands of dollars in another year and a half of discovery with social security and so should not mislead the court the court should view all the questions in light of the facts of the case that are presented before it and if it was the words fictitious name were included in there it  completely ignores the fact that there is an assumed alias i think all the parties below agreed that mr ortiz used a name other than his birth name but i don't think that all the parties would agree that it was a fictitious name and there is a distinction to be drawn there because the distinction goes to the person's intent in in assuming the identity and it's distinguishable similar to those criminal cases in the seventh and eleven case number one woman seven ninety two santiago versus you know we've listed company at all is taken under advisement agenda number two twenty two thank you for your arguments today