Change of Heart

Craig Tobin tried the last ‘heart balm’ case in Illinois history

Published in 2019 Illinois Super Lawyers — February 2019

It was a front-page headline in a November 2014 edition of the New York Post: “Sex, Lies & Stalking at 9/11 Law Firm.” A name partner at a high-powered Manhattan law firm had had an affair with an associate attorney, and now the firm was falling apart.

In April 2013, a year and a half earlier, the lawyer’s wife had hired a private investigator to spy on her husband and the associate on a business trip to Chicago. They were caught, and the affair ended. The associate was fired with severance the following month. When she moved to a new firm, the wife reached out to its partners and their wives. 

Things only got messier from there. Over the next few years, the parties would be involved, in some form or another, in nearly 10 lawsuits. 

In Cook County, in November 2014, the wife filed a claim under Illinois’ Alienation of Affections Act. She was seeking monetary damages from the associate for the time she and her husband had spent in separate homes after the affair was uncovered. 

Repealed in 2016, the act—colloquially known as a ‘heart balm act’ and enacted in 1947—had allowed one spouse to take the other’s extramarital partner to court for monetary damages. 

“When you’re caught up in it, you realize that this is like the most stupid law on the books,” says Craig Tobin of Tobin & Muñoz in Chicago, who began defending the associate in 2017. “In this day and age, we don’t view women as chattel or property. Yet these statutes were designed for the concept—I guess, because you would lose income.

“This was clearly an emotion-charged case, which is why ultimately I believe legislatures have done away with these,” Tobin adds. “They’re really not about actual recovery, or the seeking of monetary damages. The monetary damages just become an excuse to file a lawsuit, and to use it as a method of coercion, retaliation—things the legal system is really not set up to do.”

He adds: “To me, this was a young lawyer being dragged through the mud because of what she admitted was a mistake.”

After joining the case, Tobin made a motion to push forward with discovery, which had stalled. He wanted to get to trial—and a resolution—as soon as possible. 

“Our position always was that the focus was on the wrong person,” he says. “It was structured where [my client] was the one being blamed—she seduced this guy. We look at this a lot different now than we may have in the past. She was the associate. He was her boss.”

Though the other side tried to push the trial date back, Tobin held firm. The parties were assigned a judge and, in April 2018, the trial finally began. After opening statements, the associate took the stand. The wife was up next. But it settled before she could be sworn in.

Tobin was hesitant to settle. But his wife and trial partner, Paula Fuller Tobin, pointed out that the case wouldn’t be over even if they received a favorable verdict. “At that point, I realized there would be an appeal, there’d be other issues, or a jury could be hung,” he says. 

In hindsight, it was easily the right decision. “I’m sure my client felt like she had been a punching bag for several years,” Tobin says. “That young girl had been put through hell. At the end of the day, she needed peace in her life.”

Though the associate divorced shortly after the affair, she is now happily remarried, with the lawsuit behind her. 

Says Tobin: “Now, when I communicate with her—just to check up and see how she’s doing—I know that she’s fine, and she’s been able to get on with her life.”

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