My 'Motion of the Month'

This month it's been the old Motion to Vacate pursuant to 735 ILCS 5/2-1203, generally due to improper notice on the part of the moving party. These aren't quite as juicy as the 2-301 motions where you can wipe out maintenance awards, $500k in back child support, and even wed those who were seemingly previously divorced, but they're a nice tool too. Because I've had three improper notice cases just this month due to failure to follow local rule 2.1 in Cook and Supreme Court Rule 11 (which the local rule refers you to)...particularly by pro se litigants and Assistant State's Attorney (IDHFS cases).

Here's the full rule:

Rule 11. Manner of Serving Papers Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts

Generally the zinger in these motions is that notice isn't properly given at the party's "residence."

(3) by depositing them in a United States post office or post office box, enclosed in an envelope, plainly addressed to the attorney at his business address, or to the party at his business address or residence, with postage fully prepaid...

The moving party must ascertain the non-moving party's residence and give the requisite notice at said residence, period. It's classic for the moving party to make-up an address or send it to some address that was referenced in the court file 20 years ago. The good thing for you when you bring the motion to vacate is that your client should have everything in his control that can prove his residency...mail, leases, deeds, voters reg., drivers license, ect.

No Jury Demand, Please

If you've got the Plaintiff that is, or at least according to this DOJ Study covered over at Law.com...

Plaintiffs won in 56 percent of all general civil trial cases. Judges ruled in their favor in 68 percent of the cases, while juries favored the plaintiffs 54 percent of the time.

The report was released Tuesday by the Bureau of Justice Statistics at the U.S. Department of Justice. The study is the first nationally representative measure of general civil bench and jury trials in state courts.

I would have thought the Plaintiff win percentage would be higher.

Urlacher, Dent, Briggs...

Not just a list of Chicago athletes but rather potential clients...market to those Chicago sports teams to build your domestic relations practice. Here's another...bit player Jason Caffey from a few of the Bulls dynasty teams.

Sheriff's Office Gambling

I'm as big a critic of the performance of the Cook County Sheriff's Office as anybody, but is a office football pool something really worth of the I-Team's attention? I think half the businesses in Chicago would be guilty of this transgression.

I'm Not in the "Club" so my Case was Defaulted and More...

I finished up a very frustrating case this week that was quite eye-opening as it related to my client getting a fair shake before the court. I was representing an out-of-state Defendant in a courtroom that I don't frequent against a Plaintiff and Plaintiff's counsel that it seemed appeared in the courtroom regularly. Now look, I understand being friendly with the clerks and being comfortable in certain courtrooms, ect., ect. In the probate and domestic relations divisions of Cook County I'm very comfortable having practiced extensively in those divisions for 6+ years. Fine.

But when you're before the bench justice must be blind and I felt as if it was NOT for two reasons.

First, despite our client's having virtually zero contacts with Illinois, the Court denied our motion to dismiss the case for lack of personal jurisdiction. It felt like the Court wanted to let the Plaintiff bring the case here in its home forum despite the facts and the law. Second, the case is set for trial earlier this week at 930am. I have two cases at 930am so I check-in on this case and speak with Plaintiff's lawyer who tells me to take my time and go off to my other case. I come back at 1015am and the P's lawyer isn't around. Then I come back at 11ish and a default judgment had been entered. Whatever happened to holding a case for a lawyer that checked in? They didn't call the case the two times I was in the courtroom and opposing counsel wasn't.

So we can probably vacate, yada, yada, yada...but it leaves a very sour taste in my mouth about the ability of certain courts to be unbiased.

More Court Appointed Business??

I know I'll be watching the implementation of Public Act 95-0846 closely relating to court appointed counsel in juvenile court cases (see a synopsis below from The Juvenile Justice Initiative). And note that the language is "requires" and thus mandatory. Maybe a business opportunity; something like the Capital Litigation Trial Bar.

Senate Bill 2118 (Sens. Raoul-Noland and Rep. Turner) – Right to Counsel at Time Petition is Filed

This bill requires the court to appoint counsel for a youth retained in custody immediately upon the filing of a petition. It also specifies that a detention hearing cannot be held until the youth has had adequate opportunity to consult with counsel. This bill is a result of the Juvenile Defender Assessment recommendations. Senate amendment #1 clarifies that the 40 hour rule is not affected. The bill passed the Senate and House unanimously. Public Act 95-0846.

Some Good Old Fashion Creative Lawyering

There's not enough of this quite frankly. Too much of what I observe is akin to an echo chamber of lawyers repeating the same arguments over and over. Or being too lazy to do any legal research to better represent a client. If you're not making a creative sort of off-the-wall argument every few months or so, you may not be representing your clients effectively.

I fondly recall a Motion to Vacate a dissolution of marriage judgment our firm filed within the last couple years asking to undivorce two parties who thought they'd been properly divorced some 20+ years ago based on the Court's lack of personal jurisdiction over our client at the time the Judgment had been entered. I remember my opposing counsel's first call to me upon receipt of our motion...something to the effect of "Do you even practice family law?" Well, yes and I also know the code of civil procedure thank you very much. We didn't really want to undivorce the parties but it was nice to knock some $100,000 off of an alleged child support arrearage.

I got to thinking about the above as I've followed the debate over a post-divorce/collection case recently, In re Marriage of Takata and Hafley (IL App. 3rd), Case No. 3-07-0175. Most of the commentators out there say that it was wrongly decided, and it very well may have been, but it's some darn good and creative lawyering by the appellant (and the victor at the appellate level) win or lose. Haven't heard whether or not it's heading up for the Supremes to take a look at.

In a nutshell, the facts are simple, a custodial parent was attempting to collect a judgment of some $25,000 related to unpaid child support from her now remarried former husband. And the custodial parent (who's a lawyer and represented herself) used 735 ILCS 5/2-1402(c)(3) to go after her former husband.

(c) When assets or income of the judgment debtor not exempt from the satisfaction of a judgment, a deduction order or garnishment are discovered, the court may, by appropriate order or judgment:

(3) Compel any person cited, other than the judgment

debtor, to deliver up any assets so discovered, to be applied in satisfaction of the judgment, in whole or in part, when those assets are held under such circumstances that in an action by the judgment debtor he or she could recover them in specie or obtain a judgment for the proceeds or value thereof as for conversion or embezzlement. A judgment creditor may recover a corporate judgment debtor's property on behalf of the judgment debtor for use of the judgment creditor by filing an appropriate petition within the citation proceedings.

There's a line of cases under this section of the ICCP that supports a judgment creditor's stepping into the shoes of a debtor to sue a third party in the debtors stead. I.e., judgment debtor has access to $$ that he could recover from a third party but chooses not to assert his rights. So now judgment creditor asserts debtor's rights against third party. So in the case above the custodial parent is allowed to collect a judgment against her former husband's current wife's IRA.

The critics say this is wrong because the current wife's IRA isn't "marital property" until a dissolution of marriage is filed between the father and his current wife.

Maybe so and I'll let people far smarter than me figure that one out (unless it comes up in one of my cases of course), but in closing, I just appreciate some good old fashion creative lawyering when I see it.

Fathering Resources for your clients

Saw this in the Sunday Trib. regarding Goodwill's YES! Father's Project. Here's an overview from the Website:

Goodwill is helping young fathers, aged 18 to 21, take responsibility for themselves, their children, their family and community with the YES! Fathers Project. The project has the endorsement of Stedman Graham, a well-known author, speaker and marketing executive, who often focuses on issues of diversity, urban youth and ethical behavior.

The young men participate in educational and leadership development components. Emphasis is placed on education and employment. Staff help participants earn their high school diplomas or GED, if necessary. The young fathers participate in community work experience, internships, job shadowing opportunities and are linked to adult mentors who provide guidance and stability.

Eligibility:

• Young fathers, aged 18 to 21
• Identified as being low-income
• Residents of public housing
• Resident of the City of Chicago

I don't know about you but when I'm over at 32 W. Randolph it feels like I'm at the epicenter of family breakdown and if there's anything I could do to fight this societal scourge I'll do it. Selfishly, I don't know why there aren't more domestic relations referral program appointments over there to help everyone out...it doesn't have to be pro se chaos over there.

Free ADR CLE @ Daley

Saw this little nugget in October's Bar News:

A monthly series of free brown-bag luncheon seminars on Cook County Circuit Court mandatory arbitration and mediation procedures is co-sponsored by the ISBA Alternative Dispute Resolution Section.

The programs are conducted by the Law and Chancery Divisions from 12 noon to 1:45 p.m., usually on the second Thursday of each month, in courtroom 1905 of the Richard J. Daley Center. Future dates are Nov. 13, Dec. 11 and Jan. 8.

There is no charge to attend, but reservations should be made in advance by calling Rae Ferenzi at (312) 603-6078 or Patty Formusa at (312) 793-0134.

Seriously, if you keep your eyes open you shouldn't have to spend a dime on MCLE requirements if you don't want to.

An Order is an Order is an Order

Isn't it? An order entered by a sworn-in judge is an enforceable order, no? I've been dealing with a particular judge in a case recently who seems to take the position that if he/she didn't enter a particular order it shouldn't be given as much weight or on an one occasion it should be ignored because he/she wouldn't have entered it. A default order got entered by another judge but this other judge claims she wouldn't entered an Order based on the evidence and proof of personal service. This is wrong! And very frustrating from the lawyer's perspective. I'm contemplating my next move...

How to "Connect"

Well, Clinton '92 taught me it was all about the two-handed handshake and the level of intimacy was dictated by the location of the non-shaking hand...ya know is it just cupping the hand or does it go up on a person's shoulder. And then Dale Carnegie essentially takes the position that the key is being interested in others. I think Dale's a genius but sometimes those touchy feely types like "The Clinton."

Here's a piece I saw over at Law.com. Nothing too original though the handshake and business kissing analysis is funny...

The following handshakes send the wrong message:

The vise grip: A tight squeeze that crunches the knuckles implies someone who might actually pull punches, if things get tough.

The wet fish: Moist or not, grasping a hand that is weak or flimsy leaves an impression of a pushover, an individual with no backbone.

The fingertip shake: Grasping only the fingers of a hand suggests the person is too timid or weak to hold the whole hand.

The two-handed: A two-handed shake can signify real warmth and affection, or it can be interpreted as a power play...

• Women should not leave any lipstick on the recipient.

• A greeting kiss should be an air kiss or a light brush of the cheek.

• A business kiss should never be on the lips.

• A kiss should be bestowed only on people with whom you are well acquainted.

• Women may kiss men or women. Men may kiss women, and depending on the culture, men may kiss men.

Lawyer = Professional Writer

I just finished up another version of our firm's quarterly client newsletter and it got me dwelling on the absolute necessity of good writing skills by lawyers. I learn a tremendous amount when drafting our newsletter writing an overview article, answering client questions, and then analyzing several cases within our practice areas. If I weren't writing a lot I wouldn't be reading 10 cases in full for a proper understanding...I'd just be skimming my ISBA eClips and moving on. That's better than nothing but it's shallow and I don't remember what I've skimmed.

Remember, a lawyer is a professional writer! I know in reading many of the letters and pleadings that cross my desk that many lawyer's don't take a lot of time sharpening up their pens so to speak but that's a big mistake. I don't care if you're a transactional lawyer or trial lawyer the fact is that your writing skills define you as a lawyer. Plus, marketing to your client base is the most important marketing you must do so why not benefit from that marketing, even before those new clients start calling.

Benefit from the Foreclosure Mess

I had lunch with a lawyer friend/mentor recently who mentioned some court appointed work he'd gotten involved with recently and I'd guess there's plenty of work in this area now. The role is that of "Special Administrator" in foreclosure cases where a defendant is deceased. This is my understanding...Plaintiff files suit against Defendant(s) on a mortgage typically. A/the D is dead. Court then appoints Special Administrator to do an investigation of decedent's circumstances and to look at whether or not there might be a will or an heir out there who wants this house that is now being foreclosed but may have some equity. I don't practice foreclosure and couldn't find the basis for these appointments in the foreclosure statute. It may just stem from 735 ILCS 5/2-1008 which deals with how a trial court should deal with the death of a litigant.

My colleague suggested he found this opportunity through an attorney colleague who worked at one of Chicago's largest foreclosure firms and now this firm appoints him on many of its cases. So this might be your link to this sort of work...seek this our from Plaintiff-side foreclosure firms.

You Must Be an Expert on This Issue!

If you're any degree of a "trial" lawyer or practice in any area where you're in court a lot, you must be an expert on service of process/personal jurisdiction/subject matter jurisdiction issues.

These matters impact every case that you file or defend and can potentially undermine all your great lawyering if not done right, up front. Here's another recent case on the subject where a special process server wasn't properly appointed before serving a defendant and guess what, there's not going to be a sheriff's sale in that foreclosure case because the Judgment was void!

There are few swords sharper in one's arsenal than section 5/2-301 of the IL Code of Civil Procedure. If you're not looking at service issues in any post-decree or post-judgment matters coming into your office you're doing a disservice to your clients. The classic cases we're using this on in the domestic relations field are old child support collection matters. It doesn't matter if the petitioning party thinks he/she's owed $500k, if there wasn't proper service up front you can wipe that arrearage out. The place to really look for these 301 Motion to Vacate cases are parentage cases where the case was brought initially by the State's Attorney. I still listen to these cases today when I'm sitting over at 32 W. Randolph and the State will be suggesting to the court that we see there's a utility bill in someone's name so can we just serve by certified mail, ect., ect. Well, those are the cases that get blown up 18 years later.

Lock Up the Lawyers!

I strolled off the elevator on the 30th Floor at Daley this morning around 945am and there were some television cameras interviewing what appeared to be a young, female attorney. I asked around a bit and was told a Jewish, female attorney skipped a court appearance yesterday and therefore a Judge held her in contempt and apparently she was detained this morning. Of course yesterday was Yom Kippur and many Jewish attorneys may have not been in court. The courtrooms were amazingly empty yesterday.

I guess it's not only clients we have to worry about!

Chicago Lawyer Jailed: The Conclusion

Just a follow-up to a previous post about Chicago lawyer Allison Smith's being jailed for direct criminal contempt of court at Daley. The First District Appellate Court overturned her conviction. Thanks to a commenter for forwarding the decision.

The underlying message seemed to be that the trial court was wrong on a substantive ruling regarding the lawyer's Motion to Strike a trial date. This error is what caused the lawyer's outburst and was ostensibly the reason for her being jailed. The facts do seem to describe a distinct lack of civility on the part of the lawyer, but the Appellate Court seems in essence to say the lawyer had good reason for her feelings if not actions and therefore contempt is not appropriate...reversed and remanded.

Hot Off the Presses

Just heard this from a reliable source:

I'm happy to report that the City Council Finance Committee today unanimously passed Ald. Burke's proposed Ordinance to bar transfer taxes on the transfer of interest in marital home real estate pursuant to Judgment for Divorce or Separation,, including an amendment which I suggested making the proposal retroactive (to 1992!). I led off the testimony which also included Mario Ventrelli of the Schiller firm, Helene Snyder on behalf of the CBA and a Woman victim of the harebrained idea was was a client of mine which started this whole thing.

Note that they intend to NOT exclude business real estate, and there was no discussion of second homes.

I expect the proposal to pass.

Tribune Commentary on Judicial Elections

Saw this interesting commentary in Sunday's Trib. by Roy Hofer, former CBA President, entitled 'A judge-to-be beat our flawed selection system.' It outlines the case of Attorney Kristyna Colleen Ryan who apparently won a Chicago Democratic primary and is unopposed in the general so thus will be sitting on a bench in Cook County soon.

Nothing too new in the piece, our elected Judiciary may fairly be open to ridicule and the retention elections are pretty much of a joke. But what's wrong with a 36-year-old lawyer on the bench?? I'm under 36 and not to be too immodest but I bet I could do a fine job.

But according to Hofer Ms. Ryan is "unqualified" and used "schemes" to win and her seemingly serious effort to serve on the bench is a mere "ruse." God forbid she didn't kiss the bar association rings through the screening process.

How much do ya bet he's an O'Bama supporter in the Presidential election? But he's plenty experienced to be President.

Client Trust Accounts and Bank Failures

MN Lawyers Mutual had an interesting piece in its last newsletter cover the issue above. The article's fairly extensive. The general rule is that you shouldn't hold more than $100,000 of a client's money in a single bank since that's the max coverage on FDIC insurance. Personally we rarely have more than $10,000 of clients' money in our trust account. This was interesting to me:

Generally, a depositor’s account at a bank is
insured by the Federal Deposit Insurance Corp.
(FDIC) for up to $100,000.4 According to the
FDIC, deposit account records of the banking
institution must disclose the existence of a
fiduciary relationship before insurance coverage
based on fiduciary relationships will be
recognized.5 Lawyers should make sure that the
fiduciary nature of any account holding fiduciary
funds is clearly reflected in the title of the
account used by the financial institution. If the
deposit account records of the banking
institution do disclose the existence of a
fiduciary relationship, then FDIC insurance (up
to applicable limits) will be available for each
client or third person whose funds are held in the
account. Under Rule 1.15(a) a lawyer is required
to “clearly identify” his or her trust account.
Designation of the account as an IOLTA/trust
account satisfies this requirement and discloses
the existence of a fiduciary relationship for
purposes of FDIC coverage. This designation
means, for example, that if a lawyer’s IOLTA is
holding $100,000 for Client A, Client A’s funds
are insured up to $100,000 unless Client A has
funds deposited in another account in the same
financial institution as the lawyer’s IOLTA
account. A lawyer holding $1 million in his or
her clearly identified trust account on behalf of
10 clients would have FDIC insurance coverage
up to $100,000 for each of these 10 clients
provided the lawyer’s and /or bank’s recordkeeping
documents the identities and deposits of
the client’s on whose behalf the deposits were
made.

There weren't any malpractice cases cited where lawyers got in trouble, even one where lawyer kept $1,000,000 of clients money in a bank and bank failed. I would guess that result might be different now with all the banks failing.

Lawyer Divorce Solicitations

There was an interesting thread recently on one of the list serves I frequent. It seems several lawyers on the list had recently been retained by clients to defend dissolution of marriage (divorce) actions and upon meeting with the new clients heard that the clients had gotten several lawyer solicitations/advertisements upon the dissolution case being filed. Interestingly, one of the lawyers had sent one of these advertisements to our friends over at ARDC and their opinion was that as long as the envelope and letter were clearly marked as advertisements then it's OK.

Is this too tacky? The family lawyer equivalent of "ambulance chasing"??

Maybe, but I don't find this as distasteful as actual ambulance chasing. Granted I've never been close to involved with PI work but putting two and two together I think some firms essentially find injured people or look for recent accidental deaths and solicit them for legal services. So something bad has happened and lawyers are sort of preying on people in the midst of a tragedy. But the "divorce solicitations" have come seemingly from a search of a court's records when a real case has been filed and that person likely should need someone to represent him/her.

I'm not rushing out to do this sort of thing but I'm not too offended by the behavior.

IL Constitutional Convention

Is everyone following this litigation regarding the ballot wording related to whether or not we should call a constitutional convention here in Illinois? Eric Zorn has been all over it in the Trib. and they editorialized about it yesterday too. Two cheers to the Chicago Bar Association for bringing suit regarding the ballot wording. I'm voting in favor of a convention, can governance in Illinois get worse?

I got a pamphlet mailed from Secretary of State White this week. Sort of comical actually, it lays out arguments in favor of and opposing the convention. Who's arguments are these and why does the electorate need to see them? If private groups want to lobby on the issue fine but why are we getting this drivel from our government. A particularly humorous argument AGAINST having a convention:

"(It) could be controlled by special interest groups and lobbyists..." Don't people know about our current Combine??