Saturday, May 26, 2012

You Have To Read It To Believe It

This decision is an instruction manual in what NOT to do in an appellate brief. The court ultimately found that it was "unable to reach the merits because of the flagrant and, frankly, appalling violations of supreme court and local rules committed by" the appellant’s attorney. You truly do have to read the appellate court’s decision to believe it.

Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151.

Friday, May 25, 2012

Stay Denial Is Appealable, Dismissal Denial Is Not

The defendants moved, pursuant to 735 ILCS 5/2-619(a)(3), to dismiss the plaintiff’s claim or, in the alternative, to stay proceedings, alleging that there was another cause of action pending between the parties for the same cause. The trial court denied the motion in both respects. The defendants filed an interlocutory appeal pursuant to Illinois Supreme Court Rule 307.

Rule 307 allows an interlocutory appeal as of right in specified instances. Among those is an order "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction[.]" Because a stay is considered an injunction for purposes of appellate jurisdiction, the appellate court had jurisdiction under Rule 307 to hear the portion of the trial court's order denying the injunction.

However, there was no jurisdictional basis for the appellate court to review the denial of a motion to dismiss, even one brought along with a motion to stay. Accordingly, the court could consider only whether the trial court erred in denying the motion for stay and not whether the court erred in denying the motion to dismiss.

Van Der Hooning v. Board of Trustees of the University of Illinois, 2012 IL App (1st) 111531.

Wednesday, April 25, 2012

Only One Postjudgment Motion to a Customer, and Be Careful What You Call It

The plaintiff sued to recover for injuries allegedly caused by the defendant’s negligence. The jury found the defendant negligent, but also found the plaintiff 50% negligent and reduced the damage award by half. The trial court entered judgment on the verdict on August 28, 2009. On September 15, 2009, the plaintiff timely moved for judgment notwithstanding the verdict on the issue of contributory negligence. When the motion was called for hearing on September 22, the plaintiff's counsel failed to appear and the trial court sua sponte denied the motion.

On September 24, 2009, the plaintiff filed a motion for reconsideration, asking that the court reconsider the ruling it issued" on September 22. The court granted the plaintiff leave to re-file the j.n.o.v. motion. The trial court denied the motion on the merits on December 3, 2009. The plaintiff filed a notice of appeal on December 30, 2009.

Under Rule 303, the notice of appeal must be filed within 30 days after the entry of the order disposing of the last pending postjudgment motion. The plaintiff's motion for judgment n.o.v. qualified as a postjudgment motion, so that the time to appeal would not begin until the court disposed of the motion. The appellate court concluded that the trial court disposed of the motion on September 22, 2009. The plaintiff had 30 days thereafter to file a notice of appeal. Any further motion to reconsider would not extend the time to appeal.

In the appellate court, the plaintiff argued that the September 22 ruling was not a denial of the j.n.o.v. motion on the merits, but was instead tantamount to striking the motion. The appellate court noted that if that were the situation, the plaintiff should have filed a motion to "reinstate" the j.n.o.v. motion, rather than a motion to reconsider the September 22 ruling.

The appellate court concluded that the trial court denied the plaintiff's motion on September 22, 2009, so that he had until October 22, 2009, to file a notice of appeal. Because he did not do so until December 3, 2009, the appeal was untimely and it was dismissed for lack of jurisdiction.

Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 091064.

Saturday, April 21, 2012

Technology is a Good Thing, Except When It’s Not

Thirty days after the trial court dismissed the amended complaint, the plaintiff e-filed its motion to reconsider. The plaintiff filed a paper copy of the motion about 30 days after that, and the trial court heard and denied it the same day. The plaintiff e-filed its notice of appeal 30 days after the order denying the reconsideration motion.

All of that seems to be fine, but the fatal flaw is suggested by the appellate court's observation in VC & M, Ltd. v. Andrews, 2012 IL App (2d) 110523, that under "Rules 301 and 303, plaintiff's motion to reconsider and notice of appeal would be timely if the documents were eligible for e-filing." Of course, they were not.

Under the e-filing rules of the 18th Judicial Circuit (DuPage County), the case did not qualify for e-filing. Thus, the appellate court held that the plaintiff's e-filing of the motion for reconsideration was a nullity because it violated the local rules. At that point, the plaintiff was sunk. The deadline to file a notice of appeal passed on the same day that he filed the motion inasmuch as there was no properly-filed postjudgment motion that would have extended the time to appeal.

Furthermore, the circuit court’s rules expressly prohibit e-filing appellate documents and notices even in cases that are otherwise eligible for e-filing. So the notice of appeal was not only untimely, it was also a nullity because the plaintiff e-filed it in violation of the local rules. Due to the "plaintiff's blatant disregard of supreme court rules and local rules governing e-filing," the appellate court was without jurisdiction and it dismissed the appeal.

Wednesday, April 18, 2012

Final Report on Judicial Fundraising -- Primary 2012

Uninteresting as our Lake County judicial primaries were, one of the most interesting aspects of elections is often the fundraising. The quarterly campaign finance reports for the first quarter of 2012 – the key period leading up to the primary – are now in and, well, they’re pretty boring, too. But they are summarized here just the same. To help spice things up a bit, I’ll also include the First District Supreme Court primary, which featured expenditures in excess of $1 million by the eventual Democratic nominee, incumbent Justice Mary Jane Theis.

Illinois Supreme Court – First District

Joy V. Cunningham - D

      Raised in quarter - $335,900
      On hand at end - $5,284

Thomas W. Flannigan - D

      No committee

Aurelia Pucinski - D

      Raised in quarter - $64,733
      On hand at end - $2,079

Mary Jane Theis - D

      Raised in quarter - $526,238
      On hand at end - $15,886

James G. Riley - R

      Raised in quarter - $30,445
      On hand at end - $43,334

Illinois Appellate Court – Second District

Joe Birkett - R

      Raised in quarter - $1,000
      On hand at end - $13,438

Nineteenth Circuit, Second Subcircuit – Judgeship A

Patricia Fix - D

      Raised in quarter - $900
      On hand at end - $841

Luis A. Berrones - R

      Raised in quarter - $0
      On hand at end - $19,224

Nineteenth Circuit, Third Subcircuit – Judgeship A

Jeffrey S. Braiman - D

      No committee.

Daniel B. Shanes - R

      Raised in quarter - $250
      On hand at end - $88,009

Nineteenth Circuit, Third Subcircuit – Judgeship B

Nancy Waites - D

      Raised in quarter - $2,650
      On hand at end - $11,262

Thomas Schippers - R

      Raised in quarter - $250
      On hand at end - $20,098

Monday, April 16, 2012

Another Cost of a Bad Economy

"Nothing makes conditions more unbearable than the knowledge that no effort of ours can change them; and even if we should never have the strength of mind to make the necessary sacrifice, the knowledge that we could escape if we only strove hard enough makes many otherwise intolerable positions bearable."

~ Friedrich A. Hayek, The Road to Serfdom, 1994 edition

Sunday, April 15, 2012

Overcoming Process Fetishism

Lawyers love process. By "process," I refer broadly to the predetermined steps necessary to achieve an objective. For example, there is a process to be followed in civil litigation that includes pleadings, pleading motions, discovery, dispositive motions, and so forth. Process is so important to lawyers that it is even enshrined in the United States Constitution, which calls for procedural and substantive due process. Yes, that’s right, lawyers have managed to raise the concept of "process" out of the realm of mere procedure and into substance.

Many lawyers – especially litigators and those who work in government bureaucracies – have developed what I refer to as a "process fetish." That is, they become so engulfed in following the familiar process that they lose sight of the ultimate goal that the process was created to achieve. Sometimes, in extreme cases, they even forget that there is an ultimate goal aside from following the process. That happens most often to bureaucratic lawyers because even the most process-obsessed private attorneys usually have a strong economic incentive (also known as clients) to keep the goal in mind, but that incentive is mostly missing from the bureaucratic world, where process fetishism can become a way of life.

Process is extremely useful when it is a path to achieve an objective. But it can become wasteful when following the process is allowed to become more important than achieving the goal. The lawyer owes it to his or her client to periodically step back from robotically following the process to analyze whether the client’s ultimate best interest is being served by the process or whether the lawyer is following the process because it is the most comfortable path or, even worse, because it is profitable for the lawyer but not helpful to the client.

I am thinking of this now because I am involved tangentially with a lawyer who is probably not so much a process fetishist as a plain old jerk, but the two can be difficult to distinguish. He insists upon burrowing into every conceivable rabbit hole to the most extreme degree. Sometimes newer lawyers do this because they don’t have the judgment to determine early on which paths are likely to lead to something of eventual benefit to the client and they are afraid of missing something important.

But the attorney who I have in mind is too experienced for that. Instead, I think he uses process because it is profitable for him and because he is a generally nasty and abrasive human being. More process means more work and more conflict, which equals more legal fees. But it does not necessarily result in greater benefits to the client.

Regardless of why lawyers follow the process – whether out of inexperience, venality, process fetishism, or some combination of the three – it is the lawyer’s obligation to stop and ask whether process is serving the client’s best interest as the most efficient avenue to achieving the client’s goal. Due process is a Constitutional right but the process cannot become more important than the goal at the end of the process.