How Victor Pioli and Ramses Jalalpour won a case after losing two key witnesses
Published in 2022 Illinois Super Lawyers magazine on January 28, 2022
When Ramses Jalalpour and Victor Pioli tried the legal negligence case Maryanne Tadros v. Christine Marte, they were up against a unique hurdle: Two of their three key witnesses, including their client, were deceased.
Attorney J. Richard Hisaw passed away unexpectedly on Dec. 5, 2017, after his discovery deposition was taken. “It wasn’t supposed to be trial testimony, but then with his passing, his deposition testimony became his trial testimony,” Pioli says. “You had somebody who was on trial who, in some sense, couldn’t defend himself and represent his side of the story.”
But that wasn’t all. The plaintiff had filed an Attorney Registration & Disciplinary Commission complaint against Hisaw. “Hisaw filed a response, but the lawyer who represented him in filing that response also passed away,” Pioli says of George Collins, who died in October 2016. “So it was kind of tough to defend statements that were in that letter, when we didn’t have the author of that letter to explain them. It was different than any other case that I’ve tried.”
The negligence claim against Hisaw and his firm stemmed from a commercial property foreclosure. Hisaw had represented the plaintiff in the legal proceeding. When the judgment was entered, there was an excess, meaning it was more than the plaintiff had received from the sale of the property. She then sued Hisaw, claiming he hadn’t advised her she’d be on the hook for the excess judgment and should have advised her to sell the property as soon as the foreclosure proceeding was filed.
“It was an interesting case because it involved foreclosure law, but more particularly to this specific case, it was a family dispute,” Jalalpour says. “There were a lot of internal family dynamics that we were dealing with and that ended up being a large part of our defense.”
A brother and sister—the plaintiff—were in business together and, at some point, it soured. “From our perspective, that dispute is what ultimately led to the foreclosure judgement being entered against the plaintiff,” Jalalpour says. “Our defense was that the judgment was entered because there was this dispute, which, for whatever reason, prevented the plaintiff from getting rid of the property or otherwise settling the case.”
With two key witnesses gone, Jalalpour and Pioli had to dig deeper.
“You’ve got to work with what you have, and what we had was a documentary trail,” Pioli says. “One of the things that I think is unique when you represent lawyers in litigation is, because of our timekeeping requirements, we kind of have a record of what happened and what was done.”
They used Hisaw’s timekeeping records to piece the story together. For example, in regard to the claim that Hisaw didn’t advise the plaintiff to sell her property when foreclosure action was filed against her, Pioli says, “We found that he had requested a payoff letter from the bank. That’s something that you do when you’re getting ready to sell the property. We invited the jury to make the inference that, based on the fact that he requested the payoff letter, he did in fact advise her to sell the property. That was a key piece of evidence.”
They also secured testimony from the bank attorney who worked on the foreclosure proceeding. “He was very helpful in establishing that Mr. Hisaw complied with the standard of care and that in fact he had requested a payoff letter,” Pioli says. “That was very strong circumstantial evidence.”
But the extenuating circumstances made for a tough trial. “The plaintiff’s lawyer did an excellent job on the case; it was certainly no slam dunk. We were fortunate in the end that the jury saw things the way we did,” Pioli adds.
While trying a case without a living client may have been a first for Jalalpour and Pioli, it wasn’t the last. The duo was set to try another this past winter.
“I think it’s going to be something that comes up more often, because obviously there’s an aging of the population, and that goes for the age of the attorneys in Illinois, as well,” Pioli says.
His advice? “If you have an aging or sick client, kind of like any other case, make sure you get your client’s testimony on the record and nailed down. Take an evidence deposition as soon as you can to make sure the story is complete and in the record.”