IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID BOURKE, )

)

Plaintiff, )

) No. 03 CV 7749

-vs- )

) (Judge Zagel)

THE VILLAGE OF DOWNERS 

GROVE, et al.,

)

)

)

. Defendants )

PLAINTIFF’S MOTION TO RECONSIDER

ORDER GRANTING SUMMARY JUDGMENT

TO DEFENDANTS CONGER AND BRUCHAR

In accordance with Sanders v. Village of Dixmoor, Ill., 178 F.3d 

869, 870 (7th Cir. 1999), plaintiff, by counsel, moves the Court to 

reconsider its order granting summary judgment to defendants Conger 

and Bruchar.

Grounds for this motion are as follows:

1. Defendants’ motion for summary judgment (attached as 

Exhibit 1), advanced two grounds for relief on plaintiff’s attorney 

malpractice claim: First, that claimed malpractice in jury selection 

“cannot be held as a matter of law and policy to be actionable 

malpractice or be the proximate cause of plaintiff’s loss.” (Exhibit 1 

Case 1:03-cv-07749 Document 71 Filed 06/15/09 Page 1 of 8
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par. 1, emphasis supplied) And second that claimed malpractice in jury 

selection “is speculative as a matter of law.” (Exhibit 1 par. 2.)

2. Plaintiff did not read the summary judgment motion as 

advancing the argument that plaintiff did not have enough evidence to 

show that the alleged malpractice was the proximate cause of his 

conviction. Plaintiff respectfully submits that this was a reasonable 

construction of defendants’ contention that “as a matter of law and 

policy” the alleged malpractice could not be held to be the proximate 

cause of plaintiff’s loss. It was on this reading of defendants’ motion 

that plaintiff did not “discuss but-for causation.” (Mem.Op. 7.)

3. The Court read the summary judgment motion as advancing 

the factual argument that plaintiff did not have enough evidence to 

show that the alleged malpractice was the proximate cause of his 

conviction. (Mem.Op. 8.) Thus, the Court considered whether the 

opinion of plaintiff and his expert were sufficient to show that plaintiff 

would have been acquitted at trial “but for” the alleged malpractice. 

(Mem.Op. 7.) 

4. The Court should reconsider its decision to grant summary 

judgment on grounds which defendants, in obedience to Illinois law, 

had declined to advance. 

Case 1:03-cv-07749 Document 71 Filed 06/15/09 Page 2 of 8
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5. Illinois law generally requires the plaintiff in an attorney 

malpractice action to present expert testimony on the standard of care. 

Los Amigos Supermarket, Inc. v. Metropolitan Bank & Trust Co., 306 

Ill.App.3d 115, 130-31, 713 N.E.2d 686, 697 (1999); Barth v. Reagan,

190 Ill.App.3d 516, 521, 546 N.E.2d 87, 90 (1989). Illinois law does not 

require the plaintiff in an attorney malpractice action to present expert 

testimony on proximate cause.

6. The plaintiff in an attorney malpractice action must prove 

“proximate cause establishing that but for the attorney's negligence, 

the plaintiff would have prevailed in the underlying action.” Cedeno v. 

Gumbiner, 347 Ill.App.3d 169, 174, 806 N.E.2d 1188, 1192 (2004). This 

requirement is often referred to as proving a “case within a case.” 

Adams v. Sussman & Hertzberg, Ltd., 292 Ill.App.3d 30, 33, 684 N.E.2d 

935, 938 (1997).

7. Under Illinois law, when the claimed malpractice occurred in 

an action for damages, “the plaintiff is required to prove the underlying 

action and what his recovery would have been in that prior action 

absent the alleged malpractice.” Merritt v. Goldenberg, 362 Ill.App.3d 

902, 910, 841 N.E.2d 1003, 1010 (2005). This question of fact is 

generally resolved at a trial, as in Warren v. Williams, 313 Ill.App.3d 

450, 730 N.E.2d 512 (2000). A trial is required because, under Illinois 

Case 1:03-cv-07749 Document 71 Filed 06/15/09 Page 3 of 8
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law, “[t]he issue of proximate causation in a legal malpractice setting is 

generally considered a factual issue to be decided by the trier of fact.”1

Renshaw v. Black, 299 Ill.App.3d 412, 417, 701 N.E.2d 553, 557 (1998). 

As set out above, the Court granted summary judgment on 

grounds which defendants had not raised. The theory adopted by the 

Court — that plaintiff is required to come forward with expert opinion 

testimony to show that the alleged malpractice “caused [the] guilty 

verdict” (Mem.Op. 9) — is contrary to Illinois law of attorney 

malpractice. Accordingly, the Court should reconsider and set aside its 

order granting summary judgment to defendants Conger and Bruchar.

Respectfully submitted,

/s/ Kenneth N. Flaxman

Kenneth N. Flaxman

ARDC 830399

200 S Michigan Ave, Ste 1240

Chicago, Illinois 60604

(312) 427-3200

Attorney for Plaintiff

 

1 A different rule applies when the malpractice claims “rests upon the 

question of how the appellate court in the underlying case would have 

interpreted the Tort Immunity Act.” Governmental Interinsurance Exchange 

v. Judge, 221 Ill.2d 195, 211, 850 N.E.2d 183, 193 (2006). This is a question 

of law for resolution by the trial court. Id.

Case 1:03-cv-07749 Document 71 Filed 06/15/09 Page 4 of 8
Exhibit 1

Case 1:03-cv-07749 Document 71 Filed 06/15/09 Page 5 of 8
6411815v1 893190 53471

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DAVID BOURKE,

Plaintiff,

v.

VILLAGE OF DOWNERS GROVE, ET AL. ,

Defendants.

)

)

)

)

)

)

)

)

)

Case No.: 03 CV 07749

Honorable James B. Zagel

DEFENDANTS, WAYNE BRUCAR¶S AND

SCOTT CONGER¶S MOTION FOR SUMMARY JUDGMENT

Defendants, Wayne Brucar (3Brucar ́) and Scott Conger (3Conger ́), by their

undersigned attorneys, hereby move this Honorable Court, pursuant to Federal Rule of Civil

Procedure 56, to grant their Motion for Summary Judgment and enter judgment in their favor as

to all relief sought in plaintiff¶s complaint against them, with prejudice and in support thereof

state as follows:

1. Brucar and Conger are entitled Summary Judgment under Rule 56 because

plaintiff¶s claim for malpractice, as a result of professional judgment during jury selection,

cannot be held as a matter of law and policy to be actionable malpractice or be the proximate

cause of plaintiff¶s loss.

2. Brucar and Conger are entitled Summary Judgment under Rule 56 because

plaintiff¶s claim for malpractice, as a result of professional judgment during jury selection, is

speculative as a matter of law.

 Plaintiff's Exhibit 1 Page 1

Case 1:03-cv-07749 Document 71 Filed 06/15/09 Page 6 of 8
2

6411815v1 893190 53471

3. Brucar and Conger are entitled Summary Judgment under Rule 56 for plaintiff¶s

other claims for malpractice (other than the alleged negligent jury selection) because plaintiff has

abandoned said claims by failing to provide expert opinion as to the standard of care.

4. Brucar and Conger incorporate their Memorandum in Support of Their Motion for

Summary Judgment as fully set forth herein.

 WHEREFORE, Wayne E. Brucar and Nathan Scott Conger respectfully request

that this Court grant their Motion for Summary Judgment and enter judgment in their favor and

against plaintiff, David Bourke, on all claims and causes of action.

Respectfully submitted,

WAYNE E. BRUCAR AND N. SCOTT CONGER

By: s/Thomas P. McGarry

Thomas P. McGarry

Thomas P. McGarry

Renée Kelly

Hinshaw & Culbertson LLP

222 N. LaSalle, Suite 300

Chicago, IL 60601

312-704-3000

 Plaintiff's Exhibit 1 Page 2

Case 1:03-cv-07749 Document 71 Filed 06/15/09 Page 7 of 8
CERTIFICATE OF SERVICE

I hereby certify that on the 16th day of June, 2009, I electronically filed

the foregoing with the Clerk of the Court using the CM/ECF system which will

send notification of such filing to the following: James L. DeAno, Esq., Deano

& Scarry LLC, 2100 Manchester Rd., Ste A-101, Wheaton, IL 60187-4579, and

Thomas P. McGarry, Renee O. Kelly, Hinshaw & Culbertson LLP, 222 N

LaSalle St, Ste 300, Chicago, IL 60601, and I hereby certify that I have mailed

by United States Postal Service the document to the following non CM/ECF

participants: none.

/s/ Kenneth N. Flaxman

______________________

Kenneth N. Flaxman

ARDC Number 08830399

200 S Michigan Ave, Ste 1240

Chicago, IL 60604-2430

(312) 427-3200 (phone)

(312) 427-3930 (fax)

knf@kenlaw.com (email)

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