From The Uncivil Litigator comes "Rules to Live By," a set of rules to follow when appearing before a judge.
One rule, frequently violated where I practice, should be committed to memory: "I will not address opposing counsel at any time during an oral argument in court and will only address the judge, unless the circumstances require me to do otherwise."
It's easy to understand why judges become frustrated when a hearing at which he or she is supposed to be presiding disintegrates into petty bickering among opposing counsel. Answer the pointed jabs by your opposing counsel with your eyes on the judge. (On the other hand, I wonder why UCL says he always calls a judge "your honor," never "judge." Here in Southern Illinois, as well as across the river in Missouri, judges don't object to being called "judge" or even "sir"--just don't call them "dude.")
A recent decision from the First District contains some paragraphs you may want to pull out for your next summary judgment brief:
Summary judgment is proper if, and only if, the pleadings, depositions, affidavits and other relevant matters on file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Prowell v. Loretto Hospital, 339 Ill. App. 3d 817, 822, 791 N.E.2d 1261, 1265 (2003). In determining whether a genuine issue of material fact exists, a court must construe the pleadings, admissions and affidavits strictly against the movant and liberally in favor of the opponent. Prowell, 339 Ill. App. 3d at 822, 791 N.E.2d at 1265.
The purpose of summary judgment is not to try a question of fact but to determine if one exists. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d 788, 792 (1993). A triable issue precluding summary judgment exists where the material facts are disputed or, where the material facts are undisputed, reasonable persons might draw different inferences from the undisputed facts. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792. Summary judgment should only be allowed when the right of the moving party is clear and free from doubt. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792.
SeeEliot v. Williams, No. 98-L-2919 (March 3, 2004). In Eliot, the court reversed a decision by the trial court granting summary judgment for the defendant; the court held there was a genuine issue of fact as to whether the defendant's hiring of a person without doing a background check "was a legal cause, as well as the cause in fact, of the plaintiff's injuries" when the new employee later assaulted the plaintiff.
The opinion also contains an interesting discussion of "proximate cause" and "intervening cause" and which are summary judgment issues. There may be more than one proximate cause for an injury, but "[a] defendant may be held liable even if his negligence is not the sole proximate cause of the plaintiff's injuries, so long as his conduct contributed in whole or in part to the injury." Proximate cause is normally a jury issue, unless "reasonable men" would be unable to reach different conclusions about undisputed facts.
I'm still doing a little reading about forum non conveniens for a brief I'm writing. Here are a few quotes from the Dowdy decision mentioned yesterday.
The Standard of Review. "The determination of a forum non conveniens motion lies within the sound discretion of the trial court. On review, the trial court’s decision will be reversed only if it can be shown that the court abused its discretion in balancing the relevant factors."
The Plaintiff's Right to Choose the Forum. "A plaintiff’s right to select the forum is substantial. Unless the factors weigh strongly in favor of transfer, the plaintiff’s choice of forum should rarely be disturbed."
The Plaintiff's Choice of Forum. "[T]he plaintiff's choice of a forum is not entitled to the same weight or consideration in all cases. When the home forum has been chosen, it is reasonable to assume that this choice is convenient. Similarly, when the site of the accident or injury is chosen, the choice is convenient because the litigation has the aspect of being 'decided at home.'"
In Dowdy, the application of the private and public factors resulted in the Court's decision that the case could be more conveniently litigated in another forum. In other words, the plaintiff lost despite the basic rules of law quoted above generally favoring a plaintiff's choice of forum.
What are the substantive grounds for forum non conveniens? The Illinois Supreme Court’s most recent pronouncement on the doctrine is Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 797 N.E.2d 687 (2003).
In considering where the case can be most conveniently litigated, a court will consider the “public” and “private” interests, while also giving deference to the plaintiff’s choice of forum. The private interest factors include convenience to the parties; the relative ease of access to sources of proof; the availability of compulsory process to secure attendance of unwilling witnesses; the cost to obtain attendance of willing witnesses; the possibility of viewing the premises; and any other considerations that make a trial easy, expeditious, and inexpensive. Id.
The public interest factors to be considered are the interest in having local controversies decided in a local forum; administrative difficulties caused when a case is handled in a congested venue; and the imposition of jury duty upon residents with little or no connection to the case. Id.
Illinois Supreme Court Rule 187, titled “Motions on Grounds of Forum Non Conveniens,” sets out the procedure to be followed when the defendant wishes, for reasons of inconvenience, to move the proceeding to another county or to dismiss it altogether.
Each defendant in the case has 90 days from the date its answer is due to file a motion for forum non conveniens. The motion may be supported or opposed by affidavit or by any other “competent evidence.” Should the defendant prevail, Rule 187 also spells out the procedure for transferring the case to another intrastate forum.
Outright dismissal is required only if the judge rules the case should have been filed in another state; in this event, dismissal must be on the following conditions:
(a) the defendant shall agree to accept service from the out-of-state forum as long as the case is refiled within six months; and
(b) the defendant shall agree to waive any statute of limitations defense arising from the out-of-state forum.
At the U.S. District Court for the Southern District of Illinois, electronic filing is now mandatory (having been merely optional since the program began). According to an article in today's St. Louis Post-Dispatch, many lawyers who practice in the court haven't yet gotten the message:
About 8,000 attorneys are licensed to practice in Southern Illinois' federal courthouses, but so far just 500 have signed up for a password to the new system, reports U.S. District Judge Michael J. Reagan.
"This is despite an aggressive notification campaign," the judge said.
Lawyers unaware that the court will no longer accept a document mailed or handed over a counter in person may be in for a surprise, he said.
In a personal injury case--I'll take an auto accident as an example--liability on the part of the defendant is often fairly clear. Yet motions for summary judgment, even in cases of clear liability, are the exception rather than the rule. "A motion for partial summary judgment on liability?" the plaintiff's lawyer thinks. "Isn't liability a jury issue for trial?"
In a recent decision from the Fifth District, the Court upheld the trial court's grant of summary judgment on the issue of liability in an auto case. In Morgan v. Richardson, defendant pled the typical affirmative defenses: failure to keep a proper lookout, failure to observe due care in approaching an intersection, etc. Yet the defendant's lack of evidence about these defenses, coupled with defendant's admission in deposition that plaintiff could not have avoided the accident, carried the day for plaintiff.
Has anyone else grappled with this issue? In a case of clear liability, would it be reasonable for a plaintiff to conclude that he *wants* the jury to hear the evidence about liability? And how is the equation changed when the defendant fails to plead affirmative defenses?