Amendments to Illinois Pro Hac Vice Rules

The Supreme Court of Illinois amended Rule 707 (renamed as Permission for an Out-of-State Attorney to Provide Legal Services in Proceedings in Illinois) and made related amendments to Rules 756(a) and (a)(1) and 718(e) and (f), all effective for appearances filed in proceedings on or after July 1, 2013. The amendments do not require any action by an out-of-state attorney who obtained permission to enter an appearance in an Illinois proceeding prior to July 1, 2013.

Amended Rule 707 permits an out-of-state attorney to enter an appearance in a proceeding in Illinois before a court, a court-annexed alternative dispute resolution body, or a agency or administrative tribunal of the State of Illinois or of a local government unit, if the attorney: 

• meets licensure and other eligibility requirements
• associates with an Illinois attorney who files an appearance in the proceeding
• files a verified Statement with the tribunal

No order of the tribunal permitting the appearance is required. However, the attorney must serve the verified Statement on the ARDC, register annually with the ARDC, and pay fees to the ARDC.

Amended Rule 707 does not affect the longstanding practice under which an out-of-state attorney authorized to practice law in another United States jurisdiction is permitted to provide legal services at a deposition in an Illinois proceeding without need of separate Rule 707 permission, if the out-of-state attorney is assisting an attorney whose appearance in the proceeding is authorized, regardless of the location of the deposition. The out-of-state attorney is subject to the disciplinary jurisdiction of the Supreme Court of Illinois (Supreme Court Rules 751(a), 752(a) and (b), 779(a) and Rule 8.5 of the Illinois Rules of Professional Conduct). The longstanding practice is consistent with Rule 5.5 of the Illinois Rules of Professional Conduct. This practice does not permit an out-of-state attorney to file an appearance or to provide legal services before the tribunal, including the filing of any pleading, motion, or other document,  without obtaining Rule 707 permission.

Click here for instructions for a Rule 707(d) statement and for a listing of fees and requirements.

The Estrays and Lost Property Act

The Estrays and Lost Property Act (here) is pretty interesting. I stumbled across it last week while doing other research. I quickly dusted off the Black's Law Dictionary for the definition of estray:

estray (e-stray), n. 1. A valuable tame animal found wandering and ownerless; an animal that has escaped from its owner and wanders about. 2. Flotsam.

Then, of course, I had to look up flotsam:

flotsam (flot-səm), n. Goods that float on the water's surface after being abandoned at sea.

This all makes sense because Section 1 of the Act says that "Any horses, mules, asses, cattle, swine, sheep or goats found straying, the owner thereof being unknown, may be taken up as estrays in the same manner as provided for lost goods." 

Also, Section 21 of the Act says that "Any raft, timbers or plank found floating adrift on any water course within the limits or upon the borders of this State, the owner thereof being unknown, may be taken up in the same manner as provided for lost goods."

So, if both estrays and flotsam are treated as if they are lost goods, the question becomes how exactly should lost goods be treated. It turns out that the Act effectively outlaws the ancient playground theory of "finders keepers, losers weepers." 

Section 27 of the Act provides that "If any person or persons find any lost goods, money, bank notes, or other choses in action, of any description whatsoever, such person or persons shall inform the owner thereof, if known, and shall make restitution of the same, without any compensation whatever, except such compensation as shall be voluntarily given on the part of the owner." 

If the owner is not known, and if the value of the lost property is more than $100, the Act requires the finder to file an affidavit in the circuit court that contains a description of the found property. The court shall then enter an order stating a description and the value of the property. That order shall be "transmitted to the county clerk to be recorded in his estray book," and also filed in the office of the county clerk. 

After the county clerk receives that order, the county clerk shall publish notice in a public newspaper for three consecutive weeks. If the owner does not claim the property within one year of publication, ownership vests in the finder. A very cumbersome process, but the Act provides liability for double the value of the property if the finder sells, trades, destroys or otherwise disposes of the found property without complying with the Act.

Lastly, I found it odd that Section 27 includes "choses of action" in the list of property that could possibly be found in this state causing them to become subject to the terms of the Act. In order to try to make sense of this, I went back to the Law Dictionary:

chose in action. 1. A proprietary right in personam, such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in tort. 2. The right to bring an action to recover a debt, money, or thing. 3. Personal property that one person owns but another person possesses, the owner being able to regain possession through a lawsuit.

Oh ya, that's right. A proprietary right in personam. I can't tell you how many times I have been walking down the street, something catches my eye, and I've said to myself "well look at that...there's a chose in action on the ground."

Less Jurors, More Pay

Beginning on June 1, 2015, Illinois jurors will receive $25 for their first day of service and $50 for each subsequent day of service. Senate Bill 3075 (here), signed by Governor Quinn yesterday, further provides that all civil juries will consist of 6 persons regardless of the nature of the case.




Depending on population, 55 ILCS 5/4-11001 currently requires counties to pay jurors from $4 to $10 per day unless a county sets a higher rate. Cook County jurors now earn $17.20 a day (here), Will County jurors earn $10 a day (here), Winnebago County jurors earn $13 per day (here), and Du Page jurors earn $10 for their first day of service and  $15 thereafter (here). The main criticism of this part of the new law comes from counties because they must fund the pay increase.




Currently, 735 ILCS 5/2-1105 provides for 12 person civil jury trials unless the plaintiff seeks $50,000 or less in which case the jury consists of 6 persons. But the current statute permits a party to demand a jury of 12 in any civil case regardless of the amount claimed. Senate Bill 3075 amends section 5/2-1105(b) by requiring that all civil juries consist of 6 persons and by eliminating the provision permitting a litigant to increase the jury size to 12 persons. This change has been criticized by the Chicago Tribune (here) and the Chicago Council of Lawyers (here). The criticisms vary but include claims that smaller juries reduce minority representation, reduce debate, and reduce the tolerance for dissenting voices on the jury. Proponents argue that 6 person juries will shorten voir dire, reduce litigation costs, and disrupt the lives of fewer citizens.




It is unclear how much research and discussion preceded the enactment of these significant changes to the jury system.

Failure to Deny Authenticity of Commercial Documents Under Oath

I recently wrote about the Parkway Bank and Trust case, which contains dozens of civil litigation practice tips. Keep in mind that these pointers not only relate to mortgage foreclosure cases, but all breach of contract and civil cases in general. Here's another good tip:

Failure to Deny Authenticity of Commercial Documents under Oath

¶ 40 Modern banking practices, along with the inventions of the photocopier, fax machine, word processor, and computer, have made disputes regarding the authenticity of written contracts and business documents extraordinarily rare. This is particularly true in foreclosure cases. Mortgages are closed at title insurance company offices. Borrowers leave the closings with photocopies of their mortgage documents in large file folders, and they are admonished to securely keep the files with their most important papers and possessions. The title company immediately records a copy of the mortgage with the recorder of deeds, whose records forever memorialize the image of the mortgage as it existed on the day of the closing. See 55 ILCS 5/3-5010 (West 2010) (duties of recorder); 55 ILCS 5/3-5013 (West 2010) (transcription or reproduction of written instruments to be recorded); Solomon Gutstein, Illinois Practice, § 12:77 (2d ed. 2000).

¶ 41 Our legislature has enacted a special rule which discourages debtors from unduly prolonging collection lawsuits with obdurate denials. If a defendant truly wishes to deny the authenticity of a mortgage or note, he must do so under oath so as to subject himself to a criminal perjury charge if his denial is knowingly false. Defendants merely stated lack of knowledge regarding the mortgage and note. By doing so, they automatically admitted these allegations. See 735 ILCS 5/2-605(b) (West 2010) (providing that the “allegation of the execution or assignment of any written instrument is admitted unless denied in a pleading verified by oath”).

Creative Lawyering

News flash: People do not like to be sued. Oftentimes, they know it is coming and they will go to great lengths to avoid service of the summons and complaint.  

In situations like this, 735 ILCS 5/2-203.1 allows litigants to accomplish service by alternative means. The question becomes what alternative means to use. I've used this statute dozens of times. I always ask for regular mail and posting at the defendant's residence. Some judges, however, require that the mailing be sent via certified mail, return receipt requested.

You already know my feelings about certified mail (See, Certified Mail is Stupid, Northern Law Blog, January 29, 2013). No defendant in his right mind would sign for a certified letter while ducking service.  Instead, I would suggest a counter-proposal to the judge. How about UPS? No one ever turned away a package from UPS. Imagine the defendant's surprise when he tears open a huge box and finds only a summons and complaint in there.  I love it!!

Full disclosure: I didn't think of this myself. I saw another lawyer this morning hand up a UPS receipt as proof of service.    

Misnomer? Or Mistaken Identity? Which is which and does it matter?

In my relatively short time in private practice I have already encountered a surprising number of complaints that get the defendant(s) name wrong.  Sometimes the plaintiff is obviously unsure who to sue and over does it, listing a slew of (possibly) related entities and individuals in hopes of hitting the right one.  Sometimes a shorter list of defendants is used but the complaint confuses who participated in the transaction/event and how.  Sometimes the plaintiff just plain gets the defendant wrong. 

The impact of these mistakes depends on whether the error is a Misnomer or Mistaken Identity.  A misnomer is fixed “at any time, before or after judgment, on motion, upon any terms and proof that the court requires.”  (735 ILCS 5/2-401(b)).  Mistaken identity makes any judgment entered void ab initio.

A recent Fifth District opinion addresses the difference between the two and the impact of the error.  American Express sued “Ron Kosydor and HighRPMracer, Inc.” for $150k in credit card debt.  Summons was issued and finally served on “Ron Kosydor” and a default judgment was entered against “Ron Kosydor.”  But two people – father and son – named Ron Kosydor live on the same street in Alto Pass, Illinois.  The Son was served with the lawsuit and was the registered agent of the corporation.  But in post-judgment collection proceedings citation documents were sent to the Father and these documents identified the last four digits of a SS# that apparently belonged to the Father.   

The Son sued AmEx and its law firm for collecting a debt from him that was not his.  AmEx argued that res judicata barred the lawsuit: there was a final judgment in the prior collection lawsuit which was between the same parties and involved the same transaction.  In deciding that res judicata barred the lawsuit against AmEx, the court analyzed the difference between a misnomer and mistaken identity.    

Relying on Capital One Bank, N.A. Vs Czekal, 379 Ill App 3d 737 (2008) the Kosydor court explained that the misnomer statute only applies when the party is correctly joined and served but merely called by the wrong name and in such cases the court had jurisdiction over the party and the judgment is good.  But with mistaken identity the wrong person is joined and served and the court has not acquired personal jurisdiction over this person

To determine whether the error is a simple misnomer or a case of the judgment-killing mistaken identity the question is the plaintiff’s intent: who did the plaintiff intend to sue?  And the best evidence of this subjective intent is any objective manifestations of the plaintiff’s intent when the lawsuit was filed.

The Kosydor court found objective evidence that AmEx intended to sue the Son: his name and address were on the summons, the AmEx account was connected to this address, no evidence existed of the Father’s involvement with the account or the corporation.  The confusion which brought the Father into the post-judgment proceedings was not persuasive.  Because the error was a mere misnomer, this meant Son - the plaintiff - had been a party to the underlying lawsuit and res judicata applied to the Son’s lawsuit against AmEx.

Compare this to the Capital One case where the court found both a misnomer and mistaken identity: naming the defendant as a DBA, “Joseph Czekala DBA Sealand Foods,” when its contract was with a corporation, Sealand Foods, Inc., was a misnomer; linking Czekala to the account was a mistake because the objective evidence showed the relevant documents were signed by Czekala as the corporation’s president.  Because it was a case of mistaken identity, the judgment Capital One had obtained against Czekala was void ab initio.  

Kosydor v American Express Centurion Services Corporation, American Express Bank F.S.B, and Baker, Miller, Markoff & Krasny, LLC, 2012 Ill App 5^th 120110.

Submitted by Brian D. Moore, Class of ’92.

brian@moorelawpc.com

www.moorelawpc.com

Social Security Numbers on Pleadings Prohibited by new Supreme Court Rule

A new Supreme Court Rule is effective January 1, 2012. Rule 138 prohibits including a social security number on a pleading or other document filed with the court. If a social security number is required – by law or court order – only the last four digits are to appear on the filing and the filing is to be accompanied by a separate document that includes the full social security number. The rule provides a form for this document which is titled “Notice of Confidential Information within Court Filing.” The court clerk is required to keep the “Notice” separate from the court file and confidential from everyone except the parties to the action.

The comment to the rule explains that it was adopted pursuant to section 40 of the Identify Protection Act (5 ILCS 179/40) which required the Supreme Court to adopt rules to regulate disclosure of social security numbers. The Identity Protection Act was effective June 10, 2010.

Submitted by Brian D. Moore, Class of ‘92
brian@moorelawpc.com
www.moorelawpc.com

Illinois Supreme Court Announces Public Domain Citation System

The Illinois Supreme Court announced a new way of officially citing its case and those of the Illinois Appellate Court. The new citation system is required because the Court will no longer publish the official opinions in bound volumes.  The new method of citation goes into effect July 1, 2011, when the current contract for printing the advance sheets and bound volumes of court opinions expires.  From that point forward, the only place to find the entire body of Illinois case law will be online.  

These changes direct the Illinois Supreme Court and the Illinois Appellate Court to assign at the time of filing a public-domain case designator number, as well as internal paragraph numbers to all opinions and Rule 23 orders. While the rule changes require official citation to the public-domain numbering and paragraph scheme, they continue to allow parallel citations to the unofficial regional reporters such as the North East Reporter and Illinois Decisions.

An example of a Supreme Court citation under the new system would look like this:

People v Doe, 2011 IL 102345, ¶15.

This shows the name of the case, 2011 as the year of decision, the Illinois Supreme Court as the court of decision, 102345 as the court-assigned identifier number which is the docket number of the case, and a pinpoint reference to the 15th paragraph in the opinion.

An example of a Third Distirct Appellate Court decision would look like this:

People v. Doe, 2011 IL App (3d), 101234, ¶15.

In the Appellate Court, the unique identifier number would consist of the last six digits of the docket number.  Unpublished orders filed under Supreme Court Rule 23 will have the letter “U” appended to the unique-identifier number. Rule 23 orders will still be posted to the Court’s web site.

The Supreme Court's press release can be read HERE.

Dismissals for Want of Prosecution

If a plaintiff in a civil action fails to actively pursue his or her case, the court may dismiss the case for want of prosecution.  This happens most often when the plaintiff's attorney fails to appear for a previously scheduled court date.  In legal parlance, you will hear this process referred to as a DWP.

What happens when your case gets DWP'd?  First, you probably have some explaining to do to your client.  Full disclosure is usually the best option.  This will present a minor setback to your case and will delay the proceedings for a month or two while you get the case reinstated.  Also, you probably shouldn't bill the client for the time or costs involved with reinstating the case, absent special circumstances.

Next, you need to determine whether you want to move to vacate the DWP or refile the case.  If you are still within 30 days of the DWP, it is a generally cheaper vacate the DWP considering that most circuit clerks will charge between $40 and $60 for that motion.  I see those types of motions filed all of the time, and judges routinely grant them without question.

If you have really lost track of the case, however, and it has been more than 30 days since the DWP, you still have options.  The Illinois Supreme Court addressed this issue in S.C. Vaughan Oil Company v. Caldwell, Troutt & Alexander, 181 Ill.2d 489 (1998).  In that case, the court held that if a plaintiff's action is dismissed for want of prosecution, that plaintiff has the option, pursuant to 735 ILCS 5/13-217, to refile the action within one year of the entry of the DWP order or within the remaining period of limitations, whichever is greater.  Section 217 is referred to as a savings statute, with the purpose of facilitating the disposition of litigation on the merits and to avoid its frustration upon grounds unrelated to the merits.  Vaughan Oil at 497.

So, on a case involving a ten year statute for breach of a written contract, you potentially have a long, long time to refile the case.  I would be careful, however, and try to get the case refiled before the expiration of the statute.  The Supreme Court gives you the extra year following the DWP, even if it is outside of the statute, but I believe that conflicts with the actual statutory language.  The statute specifically provides that "no action which is voluntarily dismissed by the plaintiff or dismissed for want or prosecution by the court may be filed where the time for commencing the action has expired."  See Section 217.  So, to be absolutely safe, get the case refiled before the statute runs...or just show up to court in the first place. 

Requests to Admit

Illinois Supreme Court Rule 216 governs requests to admit.  A new version of Rule 216 took effect on January 1, 2011.  There are two new requirements in the amended Rule 216.

First, the maximum number of requests to admit that a party may serve on another party has been limited to 30, unless the parties agree otherwise or upon court order.  If a request contains subparts, each subpart counts as a separate request.

Also, a party must (1) prepare a separate paper which contains only the requests to admit; (2) serve the paper separate from other papers; and (3) put the following warning in a prominent place on the first page in 12-point or larger boldface type: "WARNING: If you fail to serve the response required by Rule 216 within 28 days after you are served with this paper, all the facts set forth in the requests will be deemed true and all the documents described in the requests will be deemed genuine."

Requests to admit can have drastic consequences for parties that fail to answer, or answer incorrectly.  Now there are also strict requirements on the propounding party as well. 

Be sure to update any forms accordingly.  It would be a shame if the responding party blew their deadlines, but you could not get the facts admitted because you were using last year's forms.

Splitting Hairs.

Or, alternatively titled, "When is a postjudgment motion not a proper postjudgment motion?"

A notice of appeal must be filed no more than 30 days after the entry of the final order, or the appeal will not stand. It is a jurisdictional requirement. However, Rule 303(a)(1) states that the timely filing of a post-judgment motion defers the running of the 30 days, and the deadline for filing a notice of appeal is then 30 days from the resolution of the last timely and proper post-judgment motion.

In Heiden v. DNA Diagnostics Center, Inc., 2-07-0620 (November 13, 2009), the plaintiff filed suit against the DNA center for allegedly mishandling a blood vial as part of a paternity test. The trial court granted summary judgment in favor of the defendant.

The plaintiff filed a "Motion to Reconsider Court Order and for Clarification of said Order" within 30 days. The plaintiff was concerned about a third party complaint for contribution that had been filed by the DNA Center. The court's order granting summary judgment did not specifically address what happened to that third party complaint. The plaintiff wanted language in that order specifically dismissing the third party complaint.

At hearing on the post-judgment motion, the court explained that because it was a third party complaint for contribution, it "fell on its own because there was nothing independent, no independent cause of action that would stand along against [the third parties]." There was some discussion on the record as to whether the plaintiff was asking the court to reconsider, modify, or clarify its prior order. The plaintiff's lawyer stated that he wanted clarification only, which the court did not feel was necessary, and the motion was denied. Within 30 days of that order, the plaintiff appealed.

The appellate court dismissed the appeal as not being timely. The court found that plaintiff's post-judgment motion was not of the proper format to extend the timeline. The court explained that a post-judgment motion extends the time for filing a notice of appeal only when it seeks rehearing, retrial, modification, or vacation of the judgement. Simply asking for clarification was not enough to extend the deadline to appeal.

Limitations Refresher Course

I came across a very clear explanation of the difference between a statute of limitations and a statute of repose while doing some research. I thought you might be interested.

"[A] statute of repose differs from a statute of limitations in that a statute of limitations governs the time in which lawsuits may be commenced after a cause of action has accrued, while a statute of repose extinguishes the action itself after a fixed period of time, regardless of when the action accrued." DeLuna v. Burciaga, 223 Ill. 2d 49, 61 (2006).

A statute of limitations generally does not begin to run until the plaintiff discovers (or reasonably should have discovered) his injury. By contrast, a statute of repose generally begins to run at the time of the defendant's allegedly culpable act and cuts off theright to bring a claim after a certain period of time,regardless of when or even whether the plaintiff discovers that the defendant's act caused him injury. Hinkle v. Henderson, 85 F.3d 298, 301 (7th Cir.1996)."

Agreed Orders

Can a party vacate an agreed order? That was the question answered by the court in Rolseth v. Rolseth, 907 N.E.2d 897 (Ill.App. 2 Dist. 2009), which originated out of Kane County.

In that case, the former husband petitioned to declare the nonexistence of a parent-child relationship between him and two of his former wife's children for whom he had been paying child support. That petition was resolved by way of an agreed order. Thereafter, the former wife filed a motion to vacate the agreed order. Her motion was denied and she appealed.

The appellate court noted that an agreed order is not an adjudication of the parties' rights, but rather a record of their private, contractual agreement. The court further noted that once an agreed order is entered, it is generally binding on the parties and cannot be amended without the consent of each party.

There are exceptions to that general rule, however. After a discussion of the case law and statutes dealing with modifying and vacating agreed orders, the court held that agreed orders may be modified or vacated only upon a showing that meets the standard applied to Section 2-1401 petitions, which require a showing of a meritorious defense or claim as to the underlying issue.

New Subpoena Form

As of June 1, 2009, subpoenas in Illinois civil actions can now be issued by attorneys. This is obviously more convenient than driving to the courthouse every time you need to issue a subpoena.

735 ILCS 5/2-1101 now provides that "An attorney admitted to practice in the State of Illinois, as an officer of the court, may also issue subpoenas on behalf of the court for witnesses and to counties in a pending action."

I am not aware of any circuit clerks that have printed new forms yet. I have heard some lawyers say that they are using the old forms, but just signing their own name on the line where the circuit clerk used to sign.

There is a new form being circulated on the ISBA email exchange which provides a spot for issuance by the clerk, or issuance by an attorney. I have modified the form to suit my personal preferences.

Here is a link to the document. Feel free to modify this form for your own use.

Judge finally rules on 24 year-old motion.

From the Associated Press:

GREAT FALLS, Mont. – The wheels of justice grind slowly, but this is pushing the envelope. In Montana's Toole County, retired District Judge Ronald McPhillips ruled this week in a lawsuit that was left hanging for nearly a quarter-century. The judge ruled in Great Falls against Milan Ayers, who contended that former partner James Rubow swindled him out of his share of a natural gas field, with leases potentially worth millions of dollars.

The lawsuit was filed March 31, 1983. The last entry in the clerk's register was in March 1985. Then the file disappeared from the clerk's office.

After the Great Falls Tribune wrote about it, McPhillips found the case documents.

"I think he found it in an old briefcase he had at home," said longtime administrative assistant Elda Nichols, who had worked for McPhillips before his retirement in 1994.

McPhillips brought the lawsuit and his notes to the court late last week, said Nichols, and District Judge Laurie McKinnon asked the Montana Supreme Court for guidance on how to proceed.

If the case is in good shape, let McPhillips rule on it, the judge was told.

On Monday, McPhillips ruled that Rubow did not breach his agreement with Ayers. The lawsuit was dismissed, and no damages were awarded.

"He had taken very good, very copious notes on the case, so it was good he was able to rule on it, and we were able to avoid a new hearing," Nichols said.

Ayers said he's uncertain whether he'll appeal.

Non-Wage Garnishments

In April I wrote about a successful adversary case in which I obtained a non-dischargeable judgment on behalf of my client for approximately $130,000.00. Here is the original article. One commenter noted that the case had been handled perfectly up to that point, but the commenter wondered how I expected to collect that kind of money from someone who had just filed bankruptcy.

This particular defendant runs a small business as a sole proprietorship. After several weeks of fruitless negotiations regarding a monthly payment plan, I issued a non-wage garnishment to the bank at which the defendant keeps his "business" accounts. The bank froze nearly $14,000.00. Now I had this guy's attention. We eventually worked out an agreement to accept $10,000.00, release $4,000.00, and the defendant would pay $2,000.00 per month towards his remaining balance beginning July 1st.

Then, a couple of days later, I received a call from the bank. They wanted to "amend" their answer down to about $1,800.00. They apparently paid out on a $12,000.00 check after receiving my garnishment summons. I told them that I could not accept an "amended" answer. I had already filed my motion for turnover of the $14,000.00.

Hearing on that motion is scheduled for next Wednesday. While preparing for that hearing, I dusted off the old Code of Civil Procedure. The garnishment statute begins at 735 ILCS 5/12-701. Section 707 states that the judgment operates as a lien on the non-exempt property of the debtor "held by the garnishee at the time of service of the garnishment summons and remains a lien thereon pending the garnishment proceeding." The bank ignored the lien by cashing the $12,000.00 check.

The appropriate remedy is the entry of a judgment against the garnishee. Actually, all turnover orders are judgments against the bank according to Section 711. The appropriate language for a turnover order is that "judgment shall enter in favor of defendant, and against garnishee/respondent, for the use of plaintiff, in the amount of _____." On Wednesday, I plan to enter a standard turnover order. When the bank says that it can't pay, I will begin collections against the bank. The question becomes whether the bank will try to recoup that money from my defendant, which could jeopardize my monthly payment plan. I'll keep you posted.

Tips on the Oral Argument

Last night I was looking for some new cases to read up on, but instead I discovered a part of the Illinois Courts website that I didn’t notice before... the Oral Argument Audio Video Section. It’s interesting because you can definitely learn what to do and what not to do when presenting an oral argument. Personally, I welcome all sorts of public speaking opportunities (it’s partly why I chose to pursue this profession) I think its fun; and can undoubtedly create an opportunity to deliver a message in a way that was not there before.

So here are my educational tips to approaching the Oral Argument:
......pictures and videos included!

1. Be prepared!
The best thing you can do for yourself in an oral argument is to be prepared! If you know your argument, the cases which support it, and the order in which you will present your argument you have nothing to worry about!

Practical ways you can accomplish this:

Get organized! Figure out what you need and simply take what is necessary to the podium. I suggest your brief, a manila folder which neatly contains your presentation, Post-it-Notes, and a trusty pen (Post-it-Notes and Pens are not really necessary at the time of your presentation; rather they are useful to take notes as your opponent is speaking). ----Click for image----

Print your argument in short hand format (an outline), this will help you stay on track with your argument and in case you are forced to step out of your argument order you can quickly step right back in.
---Click for image---

List your cases, so if you need to cite them to the court it’s right in front of you. And if you need to refresh you memory on a case it’s also right in front of you! ---Click for image---

Lastly rehearse your argument ...in front of a mirror if you have to! The key is to just do it! You want to work the kinks out so you won’t work them out in front of the judges.


2. Look good feel good!
Make sure you dress professionally (see image at the top). Looking professional sets the tone not only for yourself but for those who are going to be listening to you. Avoid “flashy colors” (i.e. hot pink, lime green), unnecessary jewelry, and bothersome hairstyles. The last thing you want the court to be paying attention to is the choice of your attire, your blindingly reflective jewelry you refer to as “bling”, or the constant hand gestures moving your hair out of your face. Strike the balance between looking professional and feeling comfortable. Oh and if you have to ask, “Is this appropriate?” It’s probably not!


3. Respect
Respect the court and its procedure! Simply knowing these few points will increase your credibility and respect in the eyes of the courts and your peers.
Don’t approach the bench until asked to.
Begin with “May it please the court, my name is (your name here) and I represent the (party name and role in lawsuit).
Request time for rebuttal; NEVER assume your going to get time! (As a matter of fact in most courts if you don’t request it...YOU WAIVE IT!)
Briefly and concisely, introduce with out looking at your notes the following: (Yes that means memorize these!)
The issue and your clients stand (Make this great! You command the attention at this point.)
The reasons in which you will discuss why your client should prevail (Make eye contact)
The most relevant facts (Be brief because the court usually wants to skip passed these)
Now take a breath and begin your points in detail (You can look at your notes now, but don’t stare at them!)
When speaking, avoid unnecessary hand gestures, try keeping in front of you on the podium.
Lastly if a judge speaks you zip it! No matter what you are saying! (Its that respect thing again)

In an effort to show you what to do and what not to do I have written some points and illustrated them with video links from our very own Illinois courts Website. Unfortunately the videos are more than half an hour each so I only refer to the good and not so good that occurs in the first two minutes of each oral argument.



Video 1: Weather-Tite v. University of St. Francis
The good:
She waited until she was requested to approach the bench.
She dressed professionally
She was organized and had only what she needed at the podium
She began with the “may it please the court”
She had some good eye contact
She stops speaking when the judges begin speaking

The not so good:
She forgot to mention who she was?!
She began to get flustered, it would have been better if she memorized her introduction
She had to mover her hair behind her ear. (Not a huge deal...but try to prevent having to do that)
She was nervous...and it showed.


Video 2: Stern v. Wheaton-Warrenville Community Unit School District 200
The good:
He had a good introduction overall!
He dressed professionally

The not so good:
Really did you need all those papers?


Video 3: Turner v. Memorial Medical Center
The good:
He approached the podium when asked
Good classic opening sentence

The not so good:
Lack of eye contact
Unnecessary hand gestures
Really do you need all those papers and pens?


Video 4: Halpin v. Schultz
The good:
He approached when asked
He gave a good history of the case
He had his documents neatly organized and limited

The not so good:
There was no classic introductory sentence
You really don’t have to tell us who present in the court
Skip the metaphors....you lost us for a minute
There were unnecessary hand gestures
He did not have the codes handy: (see 2min 5 seconds)


Video 5: Beelman Trucking v. Workers' Compensation Commission
The good:
He dressed professionally
He spoke in a respective tone

The not so good:
He approached the podium before asked to
Really did you need all those papers and folders up there? (unorganized)
He did not begin with the classic sentence
There were unnecessary hand motions!
There was a lack of eye contact


Video 6: In re: Cutright
The good:
He dressed professionally.
He brought minimal papers to the podium.
He approached the podium when asked.
He used the classic introductory sentence.
He clearly stated his clients stand and the issues in a clearly spoken and concise manner.

The not so good:
He could have made better eye contact.
He nervously scratched his cheek...repeatedly.
He nervously played with his ring.



Lastly here is a young law student, Victoria Corder, who in my opinion does a pretty darn good job!--->Video



As always opinions & comments are welcome!

Requesting Settlement in Pleadings

The Fall 2008 edition of Litigation, published by the American Bar Association's Litigation Section, contains an interesting article titled "Making Full Use of the Court: Come to Settle First, Litigate Second" by Magistrate Judge Morton Demlow of the Northern District of Illinois.

The article sets forth in great detail the advantages and disadvantages of requesting a settlement conference in the plaintiff's complaint, or in the defendant's answer. I have never heard of anyone doing this before, but this article makes a strong argument that more lawyers should request the court's assistance in trying to settle their cases.

I won't go into too much detail, but I wanted to share the language that Judge Demlow suggests for each parties' respective pleadings.

For the plaintiff: "WHEREFORE, plaintiff (1) hereby requests the Court to conduct a mediated settlement conference or to refer this case to its court-annexed mediation program in order to assist the parties to bring about a settlement of this case; or in the alternative, (2) plaintiff hereby demands judgment against defendant for the sum of _____ dollars."

For the defendant: "WHEREFORE, defendant prays that the Court deny plaintiff's claim and award defendant its costs and expenses incurred in the defense of this action and for such other relief as the Court deems proper. Further answering, in the alternative, defendant hereby requests the Court to conduct a mediated settlement conference or to refer the case to its court-annexed mediation program in order to assist the parties to bring about a settlement of this case."

Mailbox Rule Does Not Apply to UPS

An interesting opinion issued last week from the 2d District in the case Baca v. Trejo. There are several interesting parts of that case that I would like to highlight.

In that case, plaintiff took a default judgment for $18,000 on October 22, 2007. Defendant (through his attorney) mailed a motion to vacate the default judgment on November 21, 2007 (the day before Thanksgiving). For some reason, defense counsel sent the motion via overnight UPS, even though he presumably knew that the circuit clerk was closed on Thanksgiving. The circuit clerk did not receive and file the motion until the following Monday, November 26, 2007.

Plaintiff argued in response that defendant should have filed a 2-1401 petition because no motion to vacate had been filed within 30 days. Defendant argued that the mailbox rule should apply.

I did not know that the mailbox rule applied to posttrial motions, but it does. When a party deposits a posttrial motion in the mail within 30 days of the entry of a judgment, the time of mailing constitutes the time of filing for purposes of the time restrictions imposed by section 2-1203 (Motions after judgment in non-jury cases). A.S. Schulman Electric Co. v. Village of Fox Lake, 115 Ill.App.3d 746, 749 (1983). The court in Baca notes in a footnote that it sees no basis to distinguish between post judgment motions filed under 2-1203 or traditional motions to vacate within 30 days under 2-1301. So, the mailbox rule applies to both of them.

But, the mailbox rule does not apply to private carriers like UPS or FedEx. The court analyzed several different statutes and Supreme Court rules and decided that all references to mailing referred to the U.S. mail, not private carriers. So, defendant's motion to vacate would have been timely had he simply dropped it in the mail, but because his lawyer paid extra to send it overnight UPS, the motion was not timely filed.

It is interesting to note that defendant argued on appeal that the "article tracking" capabilities of private carriers are better than those offered by the U.S. post office, so the court should extend the mailbox rule to private carriers. The court offered a brilliant tip for those who wish to get the benefits of both the mailbox rule and the private carriers' article tracking capabilities: use both!!

"For the price of a copy of the paper and a first-class stamp, he or she may send the original by mail, using the private carrier to send a backup." Huh? It seems unnecessary to me to track a copy of a document, if the original was already deemed filed when you dropped it in the mail. Maybe the court was being sarcastic.

Proper Service

Thank you very much for the warm welcome Michael! It's amazing how just a semester of law school can change how you look at the world, it's a whole new perspective with out a doubt! Below is a link for an article that I came across...I am a big fan of technology and innovation...so I figured this might be some food for thought?

In brief, the article is about an Australian lawyer who convinced the courts to allow him to service a couple via facebook! After many unsuccessful attempts at serving the couple properly, the lawyer came across the woman's facebook page. The Judge granted permission, stipulating that the service was only to be given via their private emails such that the private matter would only be seen by the intended parties. It's not the first time the Australian courts gave permission for service in these ways (emails, text, etc.) The idea reminds me of what i learned in Civil Procedures in terms of proper service. Yet another way technology has opened a new chapter in the legal realm. I wouldn't be surprised if this method is attempted by attorneys in the U.S. in the near future?!

http://news.bbc.co.uk/1/hi/world/asia-pacific/7785004.stm