The Illinois Trial Practice Weblog

Motion Hearings: Listening to the Judge

Some judges don't say very much at motion hearings. When they do, however, make sure you're listening to them.

Last year, I saw a judge interrupt a lawyer with a comment. As often happens at a motion hearing, the judge was hearing about the issues for the first time. He was clearly wondering if he was understanding the lawyer. The judge was also a little ahead of the lawyer, and he proposed what he thought was the lawyer's best argument.

As it happened, the judge had it exactly right. But the speaking lawyer was so focused on his own presentation that he ignored the judge. The judge took it as a sign he was on the wrong track. When the judge spoke up again, he was focusing on the wrong issues, some irrelevant considerations that favored the other side.

The speaking lawyer had lost the judge and wasn't going to get him back. The correct way to handle this situation is easy. When the judge speaks, listen. Next, give him some feedback. If he's understanding your point, let him know. If he's not, tell him why not.

It's just basic communication, I suppose, but it's easy to overlook when you're deep into the outline of your own argument.

Motion Hearings: Handing Cases to the Judge

During a motion hearing, the judge will often ask to see a case that supports the position you're arguing. Be sure to come prepared. Since you can't always predict which particular issue will be troubling to the judge, you might have to bring copies of several cases, some of which are only tangentially related to your main points.

Should you make "clean" copies of these cases for the judge? I don't think so. I prefer to hand the judge my copy--that is, the one for which I've taken the time to highlight all the best language. When the argument ends, that's the copy I magnanimously suggest the judge keep with the file if he or she decides to take the motion under advisement.

Perhaps you're worried that in handing over your copy of a case, you might be left empty-handed if the judge has questions about it during the argument. This isn't a problem if you remember to arrive at court with two identical sets of highlighted cases. When the judge takes your first copy, you can pull out the second for yourself.

Does all this work seem like overkill? It won't the next time your great case (undoubtedly the one you thought didn't matter) persuades the judge to rule in your favor. 

Do You Believe in Your Case?

At DennisKennedy.blog, a post by Dennis Kennedy titled "Great Advice on Public Speaking" suggests that a speaker's performance improves in proportion to how passionate he or she is about the topic.

It's definitely true. A little passion goes a long way towards ensuring an audience will listen to a message. Throw in some enthusiasm and they may even embrace it.

That these principles apply to a lawyer's performance at trial or motion hearings is obvious. How can you expect a judge or jury to believe in your cause unless you believe in it first?

Admittedly, not every lawyer has the luxury of working exclusively on causes in which they believe. If you happen to lack enthusiasm for your cause, what can you do about it? First, try to make sure it's not too obvious. Second, think about how it affects the settlement equation. Your own lack of enthusiasm often says a great deal about the merits of a case. 

When Taking Depositions or Making Oral Arguments, Beware Pronoun Soup

In law school, my Contracts professor would turn red when we used too many pronouns in answering his questions about case facts. "They! Who's they? He? Who's he? Quit using pronouns!"

Though we all had a hard time reprogramming ourselves not to use pronouns, my Contracts professor was right: in some situations, pronouns get in the way of comprehension.

I was thinking about my contracts professor last week, when I heard lawyer after lawyer telling a judge during motion hearings that "they" did this and "he" did that until the judge threw up his hands.

"They! Who's they? He? Who's he? Be specific when you're telling me the facts."

Pronouns are even more insidious during depositions. It's almost impossible to use any single answer for impeachment if the question contains a pronoun:

Q. Were you present when he signed the contract?

A. Yes.

Q. Did you see him sign it?

A. Yes.

If you've to go back three pages to find out who "he" and "him" refers to, it makes the deposition transcript very unmanageable as an impeachment tool. While "you" clearly refers to the deponent, every other pronoun does nothing but muck up the works. That's why I try never to use pronouns when taking depositions. It feels completely unnatural at first, but it's possible to learn to do it, especially if you get into the habit of imagining your questions printed on paper as you're saying them to the witness.

Two from Other Weblogs: the Basics of Class Actions, and the Constitutionality of Summary Judgment

Have you been wondering about the basics of class-action litigation under Rule 23 of the Federal Rules of Civil Procedure? If so, take a look at the series of podcasts on this issue by Neil Wehneman, the hardest-working law student in podcasting--

Class Actions 1

Class Actions 2

Class Action 3

Have you been wondering whether summary judgments are constitutional in light of the fact that the plaintiff might be deprived of a jury trial? At Crime & Federalism, Mike Cernovich posts about a new law-journal article that concludes that summary judgments are, in fact, unconstitutional--a point which you should feel free to preserve for appeal in opposing your next summary judgment, but which I guarantee you'll lose at the trial court level.

Arguing Motions: Work Hard to Connect the Dots

If you're thinking about a way to organize an argument to the trial court, you're already way ahead of many lawyers, who often start somewhere in the middle and end up confusing the judge and anyone else who might be listening. See my prior post, "Arguing a Motion Before a Trial Court: Begin at the Beginning."

Rather than starting in the middle, approach your argument like your law school professors used to tell you to approach exams: address each issue one at a time, proceeding step by step without returning to places you've already been.

If you're arguing that a three-count complaint should be dismissed, you might organize your argument like this:

• Set the stage as explained in the prior post;
• Explain that plaintiff's complaint is in three counts, and that each count fails to state a claim;
• State the legal basis for the three claims, e.g., breach of contract, misrepresentation, and unjust enrichment, and explain that you will address each count in turn;
• Explain why the breach of contract count fails to state a claim;
• Explain why the misrepresentation count fails to state a claim;
• Explain why the unjust enrichment count fails to state a claim.

The goal is to present an argument in outline form in such a way that the outline itself becomes part of the presentation. You'll seem better organized, your argument will be easier to understand, and you won't repeat things you've already covered.

Judicial Pet Peeves

The current issue of the Illinois Bar Journal has a cover story by Helen Gunnarsson about judicial pet peeves. Members of the Illinois State Bar Association can view the article online. For non-members, here are some ideas from the article that come straight from the judges Gunnarsson interviewed.

• Be completely candid when arguing motions relating to discovery. Judges don’t like to be put in the middle of “he said-she said” disputes about agreements the lawyers made with each other about discovery.
• Don’t use discovery to play “hide the ball.” Discovery isn’t the beginning and end of the litigation. After the facts are developed, the case will be decided on the merits.
• Know and follow the local court rules.
• Be on time; if it’s not possible due to conflicting court appearances, call ahead.
• Don’t remind a judge that you plan to “file an immediate appeal” if you lose an argument.
• Don’t talk to judges during hearings as if you’re making a closing argument to a jury. Give the facts without the “theatrics.”

There’s much more in Gunnarsson’s article, including suggestions for dealing with lawyers who engage in unprofessional tactics.

Seeking a New Judge as Matter of Right in Illinois: What Is a "Substantive" Ruling?

In "Seeking a New Judge As a Matter of Right," I noted that a motion for substitution must be made before the judge has made a substantive ruling. A substantive ruling is one that affects the merits of a case. This definition is a little fuzzy, but is clarified a bit by case law:

• A substantive ruling relates directly to the merits of a case. Paschen Construction v. Illinois State Toll Highway Authority, 225 Ill. App. 3d 930, 590 N.E.2d 539, 168 Ill. Dec. 902 (2d Dist. 1992); Bonnie Owens Realty, Inc. v. Cincinnati Insurance Co., 283 Ill. App. 3d 812, 670 N.E.2d 1182, 219 Ill. Dec. 294 (5th Dist. 1996);
• A ruling on a motion to dismiss is a substantive ruling. Harvey v. Brewer, 166 Ill. App. 3d 253, 519 N.E.2d 939, 116 Ill. Dec. 724 (1st Dist. 1987);
• A ruling on a defendant's motion to strike is a substantive ruling. Swanson v. Randall, 30 Ill. 2d 194, 195 N.E.2d 656 (1964), as has a ruling on a motion for sanctions, Dolido v. Zenith Radio Corp., 194 Ill. App. 3d 268, 550 N.E.2d 1225, 141 Ill. Dec. 179 (1st Dist. 1990).

According to llinois Pretrial Practice, by Judge Jennifer Duncan-Brice, James P. Flannery, Jr., Timothy W. Kelly, & Kevin G. Owens, "examples of rulings generally held not to be on substantial issues include rulings on unopposed motions to amend, motions for extensions of time, discovery motions, and motions to sever claims." In Stoller v. Paul Revere Life Insurance Co., 163 Ill. App. 3d 438, 517 N.E.2d 5, 115 Ill. Dec. 40 (1st Dist. 1987), the First District held that a discovery order requiring parties to produce documents does not require sufficient judicial "deliberation" to make the order substantive.

Source note: Some information in this post is from Illinois Civil Practice, Illinois Institute for Continuing Legal Education (2000).

Are You Giving Away Too Much with Motions to Dismiss?

In "The Occasional Litigator's Guide to Making the Most of Pleadings and Motions," Patrick M. Kinnally warns that knee-jerk motions to dismiss may do little more than educate your opponent:

[D]etermine whether your motion will be counterproductive--that is, will you be educating your opponent, who will simply replead based on information you supply? Leave-to-amend pleadings and file amendments are construed liberally by our trial courts, as well they should be. Filing motions to show how smart you are may boost your ego but deplete your client's pocketbook.

Kinnally's article appeared in the August, 2004, edition of the Illinois Bar Journal. I can't link to the article directly, but the sentiment about motion practice easily stands alone.

Chief Justice Roberts on Remand: No Presumption in Favor of Awarding Fees

At Legal Underground, there was a discussion in the comments a few months ago about a 7th Circuit opinion in which Judge Easterbrook ruled that a case had been improperly removed to federal court. He ended his opinion like this: "[W]e also invite the plaintiffs to file (in the district court) an appropriate request for reimbursement of the additional legal expenses to which they have been put by [defendant's] efforts to move this litigation from state to federal court."

Judge Easterbrook's invitation to seek fees was based on 28 U.S.C. § 1447(c), in which a federal district court can order payment of fees and expenses when a case is remanded back to state court. Under the 7th Circuit's approach,  § 1447(c) has been viewed as a fee-shifting statute in which Plaintiffs are presumptively entitled to fees.

This is no longer the law after Chief Justice Roberts' opinion in Martin v. Franklin Capital Corp. Writing for a unanimous court, Roberts stated:

[T]he standard for awarding fees should turn on the reasonableness of the removal. Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.

The "objectively reasonable" standard effectively abolishes any presumption in favor of an award of fees upon remand.