The Trial Practice Tips Weblog

Defense Lawyers: Don't Help Out Your Opponent When It's Not Necessary

In writing this companion piece to yesterday's post--"Plaintiffs' Lawyers: Don't Let Your Cases Stagnate"--I found myself thinking about the times when defense lawyers, far from letting their own cases stagnate, seem to do too much, usually by preparing detailed motions that educate their opponents and give them a roadmap for the planned defense of the case. While defense lawyers must be concerned about preserving issues for appeal, I wonder why many often take positions with a high probability of losing at both the trial and appellate levels when it's not absolutely necessary.

I know how many plaintiffs' lawyers view these sure-to-lose defense motions with their accompanying detailed memos in support--as gifts from the defense lawyer. Choose your battles wisely.

Interstate Forum Non Conveniens: After Losing the Issue, Can the Plaintiff Refile in Another Illinois County?

The question posed is this: Say an Illinois trial court rules that another state is more suitable for a lawsuit and dismisses it based on the doctrine of interstate forum non conveniens.  Can the plaintiff then refile the action in another Illinois county and relitigate the forum issue again in the new Illinois court?

This was the approach the plaintiff took in Wakehouse v. Goodyear, No. 02-L-281 (3d Dist. 2004).  After the case was filed in St. Clair County, the defendant filed and won a motion to dismiss based on interstate forum non conveniens.  The court in St. Clair County dismissed the case, ruling that either Nebraska or Iowa would be a more appropriate forum.  But rather than refiling in one of those two states, the plaintiff refiled the case in Peoria County.

In Wakehouse, the Third District said this was improper:

Although res judicata, estoppel and law of the case do not prohibit a plaintiff who has been dismissed on the basis of interstate forum non conveniens from refiling in another Illinois county, we believe that the doctrine itself precludes such an event. Forum non conveniens is an equitable doctrine that "is based on considerations of fundamental fairness and sensible and effective judicial administration."  It allows a court to decline jurisdiction and direct the litigation to a forum that can better serve the convenience of the parties and the ends of justice. The purposes underlying the doctrine would be ill-served by allowing plaintiffs who have fully litigated and lost an interstate forum non conveniens motion to avoid its effects by the simple expedient of choosing a different Illinois county.

Id. (citations omitted).  As a result of this finding, the case was dismissed again.  What's the lesson for plaintiffs' lawyers?  If presented with a motion to dismiss for interstate forum non conveniens in a case in which another Illinois county might also be a suitable venue, the lawyer should argue for that county as a fallback position, rather than face a ruling that no county in Illinois is suitable for the litigation.

Discourse on Summary Judgment, Part III

Says George Lenard of George's Employment Blog--

My first two Summary Judgment Discourses proved to be among my most enduringly popular posts (see 5/1/04: "Discourse on summary judgment motions, spilling out after I spent most of the week preparing four of them" and 7/17/04: "Discourse on summary judgment motions Part II (having the last word: the reply brief)"

This interest encourages me to return with another installment.

George's third installment is about partial summary judgment. It's guaranteed to help you get the most out of Rule 56(d), especially when a complete and total summary-judgment victory is unlikely to come your way.

Asbestos Lawsuits in Madison County

The St. Louis Post-Dispatch writes about venue in Madison County asbestos cases in "Illinois Supreme Court has yet to weigh in on venue for asbestos suits," part of a series of articles about asbestos. There's a second article about the so-called "Lipke rule." A few of my own comments about the series are in this post from Notes from the (Legal) Underground.

A New Case About Discovery Sanctions

In Cirrincione v. Westminster Gardens, No. 1-03-0659 (1st Dist. 2004) (Quinn, J., dissenting), the First District reversed a trial court's decision to grant a dismissal with prejudice as a discovery sanction--

Sanction orders are not authorized to punish the wrongdoer. A "just order under Rule 219(c) is one which, to the degree possible, ensures both discovery and trial on the merits." Dismissal with prejudice is "not encouraged." There is a "strong policy which favors an adequate hearing of a litigant's claim on the merits." The circuit court abused its discretion in dismissing the case as a discovery sanction.

Id. (citations omitted). The trial court's dismissal of the plaintiffs' case followed a ruling that the plaintiffs had altered key documents--specifically, some cancelled checks on which they were relying--before producing them in the action. The Cirrincione court disagreed with the significance the trial court placed on the so-called "alteration," which involved writing a notation in the "memo" space after the cancelled checks had been returned to one of the plaintiffs.

The case discusses sanctions under Rule 219(c) and Rule 137. Justice Quinn, who dissented, would have upheld the trial court's ruling.

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.

Discourse on Summary Judgment, Part II

On June 14, I posted about George Lenard's musings on summary judgments, which he featured on his weblog, George's Employment Blog.

George has continued his musings in his post "Discourse on summary judgment motions Part II (having the last word: the reply brief)." Here's a preview--

Good summary judgment replies are arguably harder and more important than the original motions themselves. . . . Here I offer some practical how-to suggestions for preparing replies. Much of this is equally applicable to appellate replies.

It's a good post that will make your job of writing reply briefs much easier.

An Entertaining Discourse on Summary Judgment?

I know, I know--it doesn't seem possible. But George Lenard says he "love[s] doing summary judgment motions," and it shows in his post "Discourse on Summary Judgment Motions" (George's Employment Blog).

An issue is not genuine if no reasonable jury could buy the plaintiff's story on it . . . So I sometimes confront the uncomfortable facts head on. Even if a judge isn't comfortable saying the plaintiff's not believable, if I can show that to be the case, I then need only show the judge a way out -- another way to avoid the factual issue. And if I lose the motion, I've hopefully warmed the judge up enough to my side of the case to be on the right side of the vast discretion trial judges wield on evidentiary rulings and the like.

There's much more about the theory and practice of summary judgment motions in George's post, including this bit of good advice for citing cases: "Never a naked cite, always use at least a 'sound bite' quote or quick 'parenthetical' spinning the case your way -- but don't spin too hard or you'll lose valuable credibility with the judge and his/her clerks."

Preliminary Injunctions: A Primer

From the ABA Section of Litigation comes "Litigating Preliminary Injunctions: Sudden Justice On A Half-Baked Record," by Kenneth R. Berman (PDF). The article, which is very well done, was first presented at the ABA Annual Meeting in August, 2003.

More on Forum Non Conveniens

Lately, the doctrine of forum non conveniens has been generating a lot of interest in Illinois. On this weblog, I wrote about forum non conveniens on February 25, February 26, and February 27.

If those three posts didn't exhaust your patience, be sure to check out the article by Jill Adams in the Illinois Bar Journal: "Dawdy and the Future of Intrastate Forum Non Conveniens in Illinois."