How Lawyers Use Digital Evidence in Court

Web Admin - Tuesday, July 15, 2014

criminal defense digital evidenceThe advent of computer technology has reshaped the way that people communicate with each other, as well as how they treat information. This has created an interesting ripple effect in courts, which now have to deal with lawyers seeking to use digital evidence in court, which includes things like incriminating emails, computer files, and Facebook posts. 

The use of this sort of evidence comes with a variety of hurdles that an attorney must clear. The attorney must prove that the evidence is authentic and untampered with, as well as show that the records are acceptable as testimony. Prosecutors in a criminal case have a higher standard to meet, needing to show that their obtaining the evidence did not violate the defendant's privacy rights.

Hurdles to Using Digital Evidence

Lawyers face three hurdles in using digital evidence: authentication, hearsay, and privacy. Authentication refers to the need to demonstrate that the digital evidence is genuine and that no one fabricated or tampered with it. This is more difficult to show with things like emails than with physical letters because people can easily edit or alter the email's text to change the substance of the message. However, many courts still set a fairly low standard of authenticity for allowing the lawyers to present evidence to the jury; they leave the final determination of genuineness to the jury itself.

The next exception to the use of digital evidence is the rule forbidding “hearsay” testimony, which digital evidence often qualifies as. Hearsay is a statement made outside of a courtroom that the lawyer is attempting to use to prove the truth of whatever the statement is about. For instance, if a defendant is on trial for murder and one witness testifies that another witness told them they had seen the defendant commit the murder, that testimony would be hearsay since the testifying witness is just reciting an out-of-court statement.

Finally, in criminal cases, the prosecution must also show that the police obtained the evidence without violating a person's 4th Amendment rights. In many cases this means that the police must have received a warrant to perform the search, but there are exceptions to this. For instance, in the civil case of Largent v. Reed, the court determined that people do not have a “reasonable expectation of privacy” in regards to the things they post to Facebook, which would mean that a warrant would not be required to look through a person's Facebook profile.

How People Can Protect Themselves

Protecting online and digital information is a difficult prospect. Often, awareness of the public nature of things like Facebook posts, internet searches, and emails can help people stay alert to the fact that such things may be available as evidence in court. This can help modify people's behavior, and make them more careful about the sort of information that they make digitally available. Beyond that, there are some programs that can encrypt private data, but these can often be decrypted throughout the discovery process.

If you are concerned about the use of digital evidence against you in a trial, contact a Barrington criminal defense attorney today. Our firm represents clients across many northwest suburban towns like Rolling Meadows, Palatine, and Schaumburg.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.

Why Your LLC Needs an Operating Agreement

Web Admin - Tuesday, March 18, 2014

illinois corporate attorney llcsLimited Liability Companies (LLCs) are a form of business structure that allows owners to have some of the benefits of a standard corporation, but with more flexibility to control the particulars of the business. This flexibility makes it important to make thoughtful choices about things like voting rules and members’ rights and responsibilities at the start of the formation process. That is where the LLC operating agreement comes in. While operating agreements are not required by law in Illinois, it is still highly beneficial to have them because of the extra control that they provide.

What is an Operating Agreement?

An operating agreement is a document that controls the structure of the company and the members’ relationships. This can mean many different things, but operating agreements often include provisions related to:

  • - Each member’s percentage of ownership;
  • - Management of the LLC- Member Managed v. Manager Managed;
  • - The rights and responsibilities of the different members;
  • - Voting powers and dispute resolution mechanisms;
  • - Voting and meeting procedures; and
  • - Conditions relating to the sale of the LLC and the members’ related rights.

The Benefits of an Operating Agreement

Given the importance of the types of provisions that operating agreements contain, each LLC should have one, even if it is not technically required by law. The law forgoes this requirement because the legislature drafted a set of default rules to apply to LLCs for cases in which the members decide not to draft an operating agreement. While people often rely on these default rules, that is not the best strategy for their business. The major benefit of the LLC is the freedom and control provided by the operating agreement, so skipping the drafting of the operating agreement defeats the purpose.

This is especially problematic because often times the default rules do not make the most sense for a particular business. For instance, most actions under the default rules require only a simple majority vote of the members to be approved. Drafting an operating agreement would allow the members to introduce supermajority votes and other control provisions on more important issues. Similarly, another central issue to any business is the distribution of profits.

In Illinois, the default rule is that distributions must be made in equal shares to all of the members. This rule seldom makes sense for businesses in which different members have invested different amounts. People often want to tie their distribution to the members’ stakes in the company, which requires a separate provision in the operating agreement. Of course, these are just some of the many choices that operating agreements allow LLC members to make about their business and its structure.

If you are in the process of forming an LLC and need an operating agreement tailored to your business’s specific concerns, contact an Illinois corporate law attorney. We help businesses across the northwest suburbs in towns like Rolling Meadows, Palatine, Schaumburg, and Inverness.

About the Author: Attorney Jay Andrew is founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

Recent Posts


construction accidents, personal injury, wrongful death, Arlington Heights personal injury attorneys, workers' compensation Home Remodeling Repair Act elder abuse Crystal Lake medical malpractice lawyer products liability Landlord Tenant Ordinance defective products power of attorney surgical mistakes meal breaks Illinois Human Rights Act agent Illinois insurance dispute lawyers digital assets drug crimes lawyer Illinois speeding lawyer Crystal Lake insurance lawyer employees comparative negligence Illinois tax attorney jet ski accidents Affordable Care Act medication errors institutional trustee capital gains tax premises liability privacy laws forming a corporation in Illinois Illinois personal injury rest breaks rollover car crashes Long Grove estate planning Deer Park DUI lawyer Arlington Heights wills and trusts attorney Crystal Lake personal injury lawyer Des Plaines texting while driving Illinois business law atorneys Palatine estate planning lawyer Illinois workplace discrimination attorney loopholes Crystal Lake traffic attorney pregnant women Deer Park motorcycle accident lawyer Transfer on Death Instrument Des Plaines medical malpractice attorney insurance agent negligence Deer Park workers compensation lawyer startup company estate planning, digital assets, Revised Uniform Fiduciary Access to Digital Assets Act, Illinois digital assets, Illinois estate planning, Schaumburg life insurance attorney Arlington Heights car accident lawyer Illinois wrongful termination lawyer Buffalo Grove real estate attorney comp time attorney fees medical research how to avoid common denials of life insurance claims Crystal Lake medical malpractice attorneys Illinois pedestrian accident attorney Illinois Wage Payment and Collection Act Thanksgiving cell phone accidents real estate lawyer Retaliatory Discharge caregiver insurance attorney special needs trust Rolling Meadows probate lawyer Rolling Meadows employment law attorneys Buffalo Grove insurance claim dispute lawyers mortgage insurance dispute, insurance dispute lawyers, insurance claim denial, insurance claim delays, Rolling Meadows insurance dispute attorneys Deer Park medical malpractice attorney car crashes drug possession Palatine insurance lawyer trench injuries wage theft Illinois medical malpractice case Inverness elder law lawyer Des Plaines Traffic Lawyer Arlington Heights real estate lawyer Des Plaines drug crimes lawyer traumatic brain injury probate claims Palatine real estate lawyer estate planning attorney Rolling Meadows personal injury lawyers Crystal Lake car accident lawyer life insurance lawyer Home Sale Contingencies Chicago trucking accident attorney insurance claim Crystal Lake accident attorney Deer Park traffic lawyer real estate attorney Barrington employment attorney Rolling Meadows corporate lawyer golf accidents revenge porn Illinois workers compensation lawyer Illinois driving without license subcontractor income distribution deducation Rolling Meadows accident lawyer natural gas hands free device Rolling Meadows employment law attorney Rolling Meadows insurance dispute lawyers, insurance dispute Palatine drug lawyer DUI penalities preventing accidents Des Plaines insurance attorney murder defense Schaumburg estate attorney right to work Crystal Lake pedestrian accident lawyer Inverness DUI lawyer creditors Family Medical Leave Act murder charges Legal Info Crystal Lake tax lawyer Rolling Meadows insurance attorney low-ball insurance settlement Rolling Meadows business lawyer IRELA marijuana crimes attorney medical malpractice compensation living trust benefits federal regulations for LLCs Crystal Lake injury attorney Buffalo Grove personal injury lawyer Des Plaines pet law attorney taxes Crystal Lake employment law attorney Crystal Lake pet attorney insurance claim dispute dealing with problem employees car accidents ObamaCare Deer Park real estate law firm Arlington Heights pedestrian accidents Inverness civil lawyer Barrington real estate lawyer Buffalo Grove employment lawyer clemency Barrington medical malpractice lawyers Arlington Heights estate planning attorney medical malpractice claims pain and suffering manufacturing coronavirus Crystal Lake medical malpractice law firm Illinois traffic attorneys Chicago estate planning traffic deaths murder landlord medical malpractice, missed diagnosis, delayed diagnosis, medical mistake, Deer Creek medical malpractice lawyers car crash medical malpractice Palatine trusts lawyer probate process automated cars auto accidents personal injury claim Schaumburg estate planning lawyer Rolling Meadows Exclusions Palatine probate lawyer insurance adjusters Illinois traffic attorney construction contracts tax attorney Schaumburg insurance lawyers Barrington Traffic Lawyer residential real estate estate planning lawyer BUI Chicago life insurance attorney PTSD small business Illinois corporate lawyer Illinois boating accident lawyer Schaumburg employment law attorneys real estate leasing Rolling Meadows car accident lawyers distracted driving accident victims Long Grove wills and trusts attorneys Crystal Lake will lawyer Rolling Meadows criminal attorney Fair Labor Standards Act mass shooting Illinois Workers’ Compensation Commission employment contract, employment law, employment at-will, Deer Park employment law attorneys, contract, insurance denials traffic offenses Chicago lawyer Illinois injury lawyer Illinois construction accident attorney top life insurance claim denials construction accidents Long Grove estate planning attorney slip and fall boating under the influence criminal defense Arlington Heights Attorney back injuries personal injury, auto accident injuries, delayed injuries, serious injuries, Des Plaines personal injury attorneys fault based insurance Palatine elder law attorney car crash injuries Crystal Lake estate planning lawyer Mount Prospect real estate lawyer Buffalo Grove criminal defense lawyer sole proprietorship unfunded trust truck collisions Mount Prospect wills and trusts lawyers Palatine traffic lawyer trucking accident lawyers South Barrington real estate attorney Barrington life insurance lawyer preventable medical errors holiday statistics Barrington employment law attorney Buffalo Grove personal injury attorney Schaumburg probate attorney Illinois elder law attorney Rolling Meadows litigation lawyer privacy appealing an insurance claim Schaumburg construction accident lawyer Crystal Lake employment attorney Illinois personal injury lawyer POA Illinois small business wrongful death unpaid overtime employment law Food and Drug Administration's Food Safety Modernization Act Schaumburg traffic lawyer probate elder law Illinois criminal defense attorney Rolling Meadows insurance lawyer estate plan Schaumburg personal injury lawyers involuntary manslaughter Barrington personal injury attorney insurance disputes Illinois trucking safety breathalyzer test Arlington Heights medical malpractice lawyer license reinstatement trust payments driving Arlington Heights employment law attorneys digital evidence Barrington employment law firm Illinois probate lawyer pet law TBI digital information material misrepresentation wrongful termination Policy Cancellation Illinois registered agent Illinois Transfer on Death Instrument Mount Prospect elder law attorney Schaumburg wrongful death attorney Des Plaines collections attorney Chicago traffic lawyer commercial leases Do Not Resuscitate Illinois employment laws Liquor Control Act Illinois employment attorneys Illinois employment law attorneys Arlington Heights car crash attorneys real estate contract health insurance dispute Illinois will lawyer criminal record Mt Prospect Attorney Illinois estate planning attorney employment attorney IRA trust transfer Buffalo Grove corporate attorney Illinois Illinois workers compensation attorney insurance agents food poisoning Palatine employment attorney Schaumburg personal injury attorney personal injury lawyer gift taxes Rolling Meadows DUI lawyer college kids FSLA Crystal Lake business law attorneys Illinois wills and trusts attorneys denied insurance claim traffic accidents license suspension Inverness insurance attorney spinal cord injuries car accident Rolling Meadows personal injury attorney Illinois Probate Act of 1975 work unions estate planning trusts Buffalo Grove life insurance attorney Illinois bicycle safety Chicago biking tips severance agreements advance healthcare directive Schaumburg civil litigation attorney suspended license workers compensation Inverness accident lawyer Super Mario trucking accidents Illinois Sales Representative Act Illinois civil litigation lawyer Illinois Smoke Detector Act dog bites Deer Park criminal attorney DMV in terrorem provision estate tax Schaumburg elder law lawyer Employment Discrimination Law living wills irrevocable trust estate attorney Illinois jet ski accident lawyer healthcare denial of life insurance Palatine workers compensation lawyer expungement Rolling Meadows insurance dispute lawyers home inspection lawyer civil litigation attorney Inverness probate lawyer social media after death crossover accidents Buffalo Grove injury lawyer healthcare claims Illinois traffic laws DNR Schaumburg estate planning attorney ACA head on collisions Des Plaines tax law firm eluding a police officer Illinois trusts attorney field sobriety test Illinois insurance disputes FMLA employment contract Des Plaines real estate lawyer investment property foreclosure insurance claim delay Fourth of July Palatine employment law lawyer Illinois red light cameras BAIID insurance claim denial license revocation wills and trusts Des Plaines personal injury attorney senior citizens Palatine traffic accidents Chicago insurance claim attorneys child safety Schaumburg Rolling Meadows Attorney Illinois DUI attorney Crystal Lake employment lawyer Schaumburg injury lawyer Illinois traffic ticket lawyer Barrington civil litigation attorney bike accident drunk driving Rolling Meadows real estate attorney deadly crashes workplace sexual harassment jet ski car accident lawyer Illinois car accident attorney living trust vs will deed transfer Inverness injury lawyer Des Plaines personal injury lawyers estate planning, death tax, succession plans, business estate plans, Barrington estate planning lawyers beneficiary complications natural gas explosion Rolling Meadows criminal lawyer Chicago employment attorney fiduciary rule delay Palatine Attorney Federal Food Drug and Cosmetic Act drugs rent to own real estate contracts condo Barrington personal injury lawyer Schaumburg Attorney real estate zoning Arlington Heights insurance attorney Chicago car accident lawyer CAM Illinois insurance claims lawyers owner responsibility rollover accidents insurance claim dispute attorney Des Plaines motorcycle accident attorney blood alcohol content independent contractor Arlington Heights tax lawyer probate claims process Illinois traffic accident lawyer Crystal lake insurance dispute attorney insurance claim denials estate planning cell phone car accident lawyers financial advisors Illinois living will life insurance claim denial, denial of life insurance claim Chicago insurance law firm vacation home fines pizza emoji Inverness real estate lawyer Buffalo Grove medical malpractice lawyers Illinois LLC creation Barrington criminal lawyer real estate Arlington Heights TBI attorney traffic laws breach of contract personal injury attorney LLCs Buffalo Grove traffic attorney Buffalo Grove car accident lawyer Arlington Heights personal injury attorney traffic violations operating agreements Buffalo Grove law firm Illinois motorcycle accident lawyer Illinois insurance lawyer Arlington Heights employment attorney Des Plaines accident attorney homestead rights life insurance Chicago estate planning lawyer Deer Park employment law attorney consent to a search dynasty trusts DUI defense most common reasons for life insurance claim denials drunk driving statistics disability benefits Schaumburg car accident attorney Chicago corporate attorney Illinois real estate civil litigation motorcycle accident Palatine construction attorney Palatine civil attorney bicycle accidents Palatine injury attorney wrongful termination, employment law, whistleblower protections, Illinois employment laws, discrimination in the workplace workers comp Crystal Lake criminal defense attorney Rolling Meadows personal injury lawyer liability claims overtime pay Illinois personal injury attorney Barrington drug crime attorney license sexual harassment pay when paid contract product liability underfunded trust insurance dispute spinal cord injury llinois Real Estate Lawyers Association dram shop law denial of insurance claim boating accidents Chicago employment lawyer cause-of-death exclusions new real estate form bicycle dooring accidents Crystal Lake traffic lawyer Inverness estate planning lawyer Schaumburg medical malpractice lawyer Barrington business law firm Inverness personal injury attorney traumatic brain injuries ken apicella fatal car accidents Deer Park accident attorney employee rights Attorney Ken Apicella Buffalo Grove traffic lawyers estate planning for college students pedestrian accidents Rolling Meadows medical malpractice lawyers reckless homicide real estate attorneys Long Grove estate planning attorneys Kenilworth estate planning attorneys Rolling Meadows tax attorney Chicago attorney insurance claims texting and driving Des Plaines criminal attorney Illinois workplace lawyer Illinois personal injury lawyers personal injury employment lawyer personal injury accidents Barrington workers compensation attorney nursing home negligence living trust Illinois insurance claim dispute lawyers icy parking lots power of attorney for healthcare swimming pools Joliet general practice lawyers insufficient documentation Illinois wills and trusts Rolling Meadows Traffic Lawyer Arlington Heights traffic attorney Palatine civil litigation lawyer Barrington litigation attorney Long Grove real estate lawyer Illinois defective products attorney Illinois collections attorney internet compensatory time Crystal Lake civil litigation lawyer underage DUI Rolling Meadows employment attorney Barrington boating accident attorney Schaumburg employment attorney Arlington Heights wills and trusts lawyers Des Plaines real estate attorney no contest clauses criminal law Illinois rollover accident lawyers installment contracts job lawyers Arlington Heights personal injury lawyer Illinois law Illinois employment law firm Crystal Lake car accident attorney Palatine personal injury lawyer employment law, Illinois employment laws Deer Park traffic accident attorney Palatine business attorney sexual images Class A misdemeanor Barrington estate planning lawyer BAC Illinois estate planning law firm overtime violations Arlington Heights lawyer drug crimes Barrington attorney DGAA real estate closing personal injury claims Barrington injury attorney Palatine punch death traffic crimes bad faith insurance claims Long Grove real estate attorney Palatine criminal defense lawyer Crystal Lake law firm condo association slip and fall accidents speeding loss of consortium whistleblower protections Illinois employment law attorney accidental death benefits changes to mortgage law liens business litigation contracts problem employees Palatine employment lawyer guardianship attorney Schaumburg corporate attorney hit and run accident lapse in policy wills Illinois lawyer Buffalo Grove probate lawyer controlled substance Rolling Meadows drug defense attorney Detainer Actions GM ignition switches Illinois estate planning Crystal Lake personal injury attorney criminal traffic tickets insurance denial appeals Illinois business lawyer Arlington Heights Traffic Lawyer modern family estate planning pedestrian injuries, pedestrian fatality boating DUI underinsured motorist corporate law hiring employees Arlington Heights injury attorney Palatine corporate attorney Kenilworth estate planning lawyer Des Plaines personal injury lawyer Illinois employment lawyer paid sick leave Riverwoods estate planning lawyer workers compensation benefits Crystal Lake bike accident lawyer Barrington estate planning attorney Palatine corporate law attorneys Illinois job attorney IRA benefits personal injury law firm gift tax exemption, estate planning, estate planning strategies, Illinois estate planning, South Barrington estate planning attorneys traffic violations defense employment law, meal breaks, rest breaks, hotel employees, Des Plaines employment law attorneys pet bites Palatine law firm Illinois attorney Rolling Meadows traffic attorney Arlington Heights criminal lawyer Rolling Meadows boating crash lawyer Jay Andrew life insurance claims Illinois real estate lawyer marijuana brain injury employee discrimination Illinois home inspection pedestrian accident Palatine life insurance lawyer Deer Park personal injury lawyer Inverness real estate attorney Colin Gilbert liability probate lawyer Illinois employee rights attorney. Schaumburg personal injury lawyer insurance negligence Illinois pet lawyer South Barrington real estate lawyer probate fees Illinois insurance claim dispute lawyer federal crimes Inverness corporate attorney Illinois insurance claim attorney Schaumburg real estate lawyer Schaumburg criminal attorney trustee IRS Arlington Heights trucking lawyer Illinois medical malpractice lawyers rumble strips landlord tenant law Rolling Meadows marijuana attorney Illinois employment law Illinois mortgages Barrington Illinois estate planning lawyer Whistleblower Claims Kenilworth estate planning attorney digital assets, digital fiduciary, estate planning, digital content, Long Grove estate planning lawyers civil rights violation distracted driving accidents Arlington Heights wills and trusts lawyer unpaid assessment vacation home School Visitation Rights Act trusts minimum wage fiduciary rule Des Plaines claims law firm cell phone tower data employee misclassification Rolling Meadows life insurance claim denial attorney Self-Directed IRA Accounts car collision Rolling Meadows traffic law firm Des Plaines drug lawyer denied insurance claims Illinois medical malpractice attorney Rolling Meadows estate planning attorney DUI attorney Illinois insurance attorney Des Plaines DUI attorney Arlington Heights wills and trusts attorneys Barrington criminal defense lawyer DUI medical marijuana Schaumburg criminal law attorney Schaumburg drug defense lawyer life insurance policy digital media accounts, estate planning, Arlington Heights estate planning attorney, commercial real estate Colin H. Gilbert insurance dispute attorney Des Plaines civil attorney defective products lawyer first degree murder uninsured motorist caretaker rights trauma after an accident Forcible Entry insurance disputes, Illinois insurance disputes, Illinois insurance dispute attorneys, denied insurance claims, Arlington Heights insurance dispute attorneys drug crime filing a medical malpractice claim pedestrian-automobile accident Des Plaines injury law firm unauthorized overtime foreclosed rental property anesthesia errors commercial leasing Chicago will attorney, social media platforms, Illinois estate planning lawyer, Illinois medical malpractice claim motorcycle accident lawyer blended families Inverness traffic law firm Arlington Heights accident attorney Chicago will attorney Illinois Trust Code