The Trial Practice Tips Weblog

Motions to Reconsider: Do They Exist in Illinois?

I've heard plenty of lawyers and at least a few judges say there's "no such thing" as a motion to reconsider. For anyone who needs some alternative authority, there's Stringer v. Packaging Corporation of America, No. 4-03-1080 (4th Dist. 2004), in which the court explained the limited situations in which a motion to reconsider is appropriate:

The purpose of a motion to reconsider is to bring to the trial court's attention (1) newly discovered evidence not available at the time of the hearing, (2) changes in the law, or (3) errors in the court's previous application of existing law. The decision to grant or deny a motion to reconsider lies within the trial court's discretion.

Id. (citation omitted). The Stringer court also stated that if the motion to reconsider is based upon newly-discovered evidence, "a party must show that the newly discovered evidence existed before the initial hearing but had not yet been discovered or was otherwise unobtainable."

Finally, the court noted that an alternative to a motion to reconsider is a "motion to reopen proofs," which is another way of bringing new evidence to a trial court's attention. The necessary components of this motion are listed in the linked decision.

Trial Tip for Plaintiffs' Lawyers: Find the Dastardly Deed

Kansas City lawyer Timothy W. Monsees recommends that plaintiffs' lawyers "find the dastardly deed"--

I have followed this practice for years, but I never had a tag line for the strategy until my good friend and able trial lawyer Gene P. Graham, Jr. described the inevitable search for "the dastardly deed." In short, and perhaps this is a bit cynical, trials in the minds of juries are less a search for the truth than they are an emotional search for the "bad guy." The more we can do, as trial attorneys, to find and label the acts or omissions of the opponent as "dastardly," the less the warts of our own client and case will affect the verdict.

Monsees says that from the beginning of the case, you should find ways to make the other side's witnesses and arguments look sinister. Monsees has tips for doing this during jury selection, opening argument, and with the witnesses. An interesting article!

Opening Statement: Keep It Simple

Watching opening statement in a trial this morning, I was reminded of the last time I prepared an opening a few months ago. As I was rehearsing it for my partner, Andrea Lamere, she continually interrupted me to say, “Make it simpler.” Once, though I was able to simplify the sentence, she stopped me again to repeat her admonition and then did it two more times.

Each time I found a way to state my thought more simply. I also recall growing very exasperated about the way my legal education was getting in the way of communicating like a regular person. Or, that is, talking like the guy next door.

I’ve posted about using simple speech at trial before, for example, here and here. At the trial this morning, I was able to understand some of the jargon that was being tossed around only because I was already very familiar with it. I have no idea what the jury must have been thinking. I’m not one to cast stones at trial attorneys when I’m sitting on the bench, but I did stop listening for a moment to write a big reminder to myself: “Keep it simple.”

An Outline for Closing Argument

Lawyer Ervin A. Gonzalez presents his outline for closing in his short article, "Closing Argument." Gonzalez recommends that lawyers walk freely about the courtroom rather than using a podium and not rely on notes. The closing should be organized something like this:

• Give a basic greeting;
• Explain the difference between criminal and civil trials;
• Discuss the standard of proof;
• Summarize the proven facts of the lawsuit in story form;
• Make use of demonstrative aids;
• Rebut the other side's anticipated arguments without attacking the opposing lawyer;
• Move on to damages. The plaintiff should spend at least 35% of the closing discussing them, while the defense lawyer should focus more on liability;
• Conclude with a strong ending.

Precedent In Illinois: "Only One Appellate Court"

It's been my experience that Illinois trial judges pay more attention to appellate cases arising from the district in which they sit. So at a hearing in St. Clair County this week, I tried to minimize the effect of a case my opponent handed to the judge by pointing out, among other things, that it arose out of the First District, not the Fifth District.

"I'm not sure that's a correct recitation of precedent in Illinois," the judge responded. "Illinois has only one appellate court."

He was right, of course. Here's a summary of the rule from a Supreme Court case:

Illinois has but one appellate court. Although the state is divided into five judicial districts, those districts have nothing whatever to do with the court's authority. Their sole purpose is to define the political units from which judges of the supreme and appellate courts are selected.

Because there is only one appellate court, a decision by any division of that court is binding precedent on all circuit courts throughout the state, regardless of locale.

Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 679 N.E.2d 1224 (1997) (citations omitted).

UPDATE: Negative Treatment Indicated. In a comment, lawyer Benjamin Barr advises me that this post incorrectly states the law. If you read this post, please read his comment. Although I wasn't writing specifically about conflicts among districts (and in the case on which I was appearing, I didn't have a Fifth District case to present), Mr. Barr's point is well taken, and he's right that the portion of the case I quoted does not express the Supreme Court's view.

Tips from the Machiavellian Lawyer

From time to time, The Machiavellian Lawyer weighs in with tips at my other weblog, Notes from the (Legal) Underground. The tips, as well as reader commentary, are collected here.

Appeal from Final Judgments That Do Not End the Entire Proceeding

Whenever I need Illinois Rule Supreme Court Rule 304, which is titled "Appeals from Final Judgments That Do Not Dispose of an Entire Proceeding," I can't seem to find it. So I'm bookmarking it here in this weblog, which will keep it from getting lost.

The need for the rule usually arises like this: the court issues an order ruling for or against a particular party or claim, taking it out of the case entirely, but not disposing of the entire case because other parties or claims remain. Can an appeal be taken? Generally, no, since the court's order does not constitute a final judgment. Rule 304 allows the court to make its order appealable by entering "an express written finding that there is no just reason for delaying either enforcement or appeal or both."

Rule 304 should be distinguished from Rule 308, titled "Interlocutory Appeals by Permission," which is an entirely different creature.

Mediation Resources

There are a number of articles about mediation at Stephen Marsh's website, ADR Resources. Included among the articles is "Mediation Pitfalls and Obstacles," which notes:

• 24% of the failed mediations result from a lack of settlement authority. In a survey involving over 150 mediators and a substantial number of sessions, almost one quarter of the failures were the result of a necessary party not attending. Those with authority must attend in order for the process to work.
• 21% of the failed mediations result from a lack of preparation. Often referred to as a "inadequate discovery," the problems quite commonly reflect a party or an attorney who does not know enough about their own case to be able to settle the case.

A Lawyer Shares Lessons Learned the Hard Way

From Missouri attorney Richard C. Miller comes "Trial Tips (Or Lessons Learned the Hard Way!)," an article well worth reading. It contains a number of helpful pointers with detailed explanation, for example, don't have an expert perform demonstrations live; deal with the pervasive issue of "personal responsibility" if representing the plaintiff; and choose local counsel carefully. Miller also includes this helpful tip:

Start a witness list and exhibit the day you open the file and organize your trial files to collect and organize evidence regarding each such witness or exhibit. Then make sure you have a good paralegal who has the time to keep it up.

Freelancing Out Along the Razor's Edge of Appellate Brief Writing

I didn't know it, but apparently there is a debate raging among appellate lawyers about the best way of stating the issue in the part of the brief I think of as the "whether" clause.

At least, that's how I used to think of it. It seems that among the risk-takers, the use of the word "whether" is out when stating the issue on appeal. It's a movement that was started by Bryan Garner, who argued that the issue can be grasped more easily by readers if it is stated according to his "deep issue" formulation.

To learn more, read this post from Raymond Ward's Rain Man 2. The post clued me in to the debate and inspired me to purchase Garner's The Winning Brief, where the "deep issue" idea is explained in more detail. (But at fifty bucks, how will I be able to afford my whiskey?)