Sure, it will take quite a paper cut to kill a man but too many emergency motions can be pretty darn debilitating to your law practice. An emergency motion is simply a court motion where the regular 5 business days notice are not given…often little or no notice is given. Sometimes they’re necessary (not as much as they’re used) but emergency motions really wreck a schedule and cause a tremendous legal work backlog. Frequently the 20 cases that need your attention must come to a halt so you can run into court to deal with the single emergency motion that often isn’t really an emergency.
The inspiration for this post is a matter I’ve been spending a LOT of time with of late, almost exclusively due to emergency motions. The case has been in court 8 times in 5 weeks and all but maybe 2 of those court dates were “emergency” and unplanned/unscheduled court dates. And even ignoring the stresses involved in this particular case, a single client matter has really backed-up the work flow in my office.
What’s a sole practitioner to do in the event of EMERGENCY??
And I’m asking primarily because I don’t have a perfect answer. Because the nature of an emergency motion implies that something important and urgent is being brought into court on very short notice so my usual bevy of ‘coverage’ attorneys don’t work…I need more than someone to step-up for 5 minutes before a judge. I suppose I need more like an ‘Of Counsel’ sort of individual or someone a tad more intimately familiar with our clientele and practice.
The easier solution might be better delegation of tasks generally, then there’s not as much of the law firm business work flow coming to a halt. It’s easier to delegate the mundane day-to-day drafting versus often unique in-court emergency matters.
Or you can simply avoid the domestic relations practice area with its combination of often imbalanced clients and family explosiveness. It’s extremely rare to see emergency motions in other practice areas.
The more time I spend sitting around courtrooms for my own cases & even more relevantly for this post, the more time I spend sitting around courtrooms observing other lawyers, the more strongly I feel that the title above is CORRECT! I’m sure there’s an exception or two to the above where trials are inevitable such as in some of the criminal or personal injury areas, but in many, many practice areas court appearances tend to be mostly of the “status report” variety or mere formalities to have a judge sign-off on some settlement. And that’s why you need to do your heavy lifting/lawyering back at the office.
I think too many lawyers & clients do not get this.
How do you know if you’re not doing enough strong lawyering outside of court? The fact that you or your cases are in court too frequently might be the first strand of evidence. Second, are you in court too much on matters that are mostly logistical in nature like discovery disputes or temporary orders or mere case logistics? I just observed a big deposition controversy in the last few days at Daley Center that surely should have been handled without judicial intervention.
I think of the in-court vs. out-of-court balance as very similar to athletics where 90% of your time is spent practicing and games comprise only 10% of time. Practices are where the heavy lifting occurs and your skills are developed. If you attend a football game you can tell who worked hard in preparation for the game in comparison to the person who sloughed-off during the week thinking he could just show-up on Saturday and make things happen. The courtroom picture is very similar. I can almost always tell which lawyer has communicated with opposing counsel long before this court date or has been pushing her client to answer discovery or speak to the other party about settlement or push the case forward generally.
Here are 5 reasons to step-up your Outside-the-Courtroom Lawyering:
- Less court = Less lawyer/client hassle. I don’t mind going to court and frankly I like a good old contested hearing once in a while but you can’t tell me that most clients enjoy going to court. Nope, most clients dread going to court. It’s time off from work, coming downtown, paying for parking, and just an uncomfortable high stress situation in general. I talk to clients up front about 3-4 case approaches from mediation to lawyer as mere scrivener to cases where EVERYTHING is in-court and strictly between the lawyers. Once in while I do end up in the extreme category where everything happens in court and only between the lawyers, but honestly that’s the worst place on the continuum to be.
- Client Ownership & Client Actualization. Every case is the client’s case. I might live with a situation for several months or sometimes a couple years but it’s the client’s for life. I’d rather have great input in shaping the terms of a judgment instead of strictly having terms imposed on me. List client action points with every letter you send after a court date and check-in with clients via telephone/e-mail to make sure progress is happening.
- Be a Level 5 Lawyer. Jim Collins in Good to Great talks about Level 5 leaders as the essential leaders where certain companies made the jump from good to great. The book analyzes the traits of certain select high-performance corporations. In a nutshell, Level 5 Leaders “blend extreme personal humility with intense professional will.” I think there’s a relevant parallel to lawyers…the ideal “Level 5 lawyer” has intense pride focused solely on the case result and client satisfaction whereas many lawyers sort of want to pad their ego by keeping case decisions only in their hands and subtly raising their own importance while undermining client satisfaction and frequently worsening case results.
- Start with the End in Mind. Once you’ve been retained by a client, you should immediately set out a case map with your client laying out time-frames, action points, and the major decisions that will be decided over the course of litigation. Get the client engaged and working on her case immediately. In my practice using the example of a dissolution of marriage case, decisions are typically going to be made regarding 1) property division, 2) maintenance, 3) child custody, and 4) child financial support…talk through the statutory standards on those matters up front and see if the clients can work through these matters together. If the clients can make these decisions themselves great, if not make sure you’ve done your strong out-of-court lawyering so you know where court intervention IS necessary more quickly. The trouble is when 6 months into a case a client may not even yet know or understand the items a court may need to decide or the decisions that need to be made.
- No fights about temporary orders or discovery, EVER. Granted I can’t always achieve this but it is a rule of mine that I tell clients up front. This is the crap that wastes critical dollars, lawyer time, and is wholly unsatisfying. I never want to be the lawyer in court from a few weeks back who had to argue about re-scheduling a deposition in open court. The mother has custody of the kids while the divorce is pending, keep supporting them, keep the temperature down, and work out a parenting schedule between the two of you.
Posted by Peter
on July 10, 2010
Seriously, it’s the most often repeated question I see asked again & again & again & again….on lawyer listserves. Some version of the following:
QUESTION: What do I do if a court filing deadline falls on a holiday/weekend??
ANSWER: Look at the Statute on Statutes (5 ILCS 70/1.11) and read this 2nd District case, Bertell v. Rockford Memorial Hospital.
The statute reads:
(5 ILCS 70/1.11)
(from Ch. 1, par. 1012)
Sec. 1.11. The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded. If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.
So in your typical situations if there’s a filing deadline that falls on a Saturday, your filing would be timely if made on the following Monday. But what if Monday is a “legal holiday” pursuant to the State Commemorative Dates Act (5 ILCS 490/60) and yet it’s not a “court holiday” in the relevant circuit court where the case is pending? Well, that’s why you as a lawyer need to keep updated on reading appellate cases like Bertell (or you plan ahead a tad more and don’t wait until the last day for filing).
In the case the Plaintiff alleged that Defendant had improperly detained him and that Defendant had failed to file a timely petition for involuntary commitment. Defendant had to file its petition within 24 hours of detaining the Plaintiff. Plaintiff was initially detained over a weekend so the weekend days were clearly exempt in terms of the 24 hour deadline. Defendant eventually filed the petition for involuntary commitment on Tuesday. The “strangeness” of Monday’s holiday was the cause of this case.
Monday was Lincoln’s birthday and a legal holiday according to the State Commemorative Dates Act but the 17th Judicial Circuit Court was open for business. Well, both the trial and appellate courts held for the Defendants that even though the court was open since Lincoln’s Birthday is designated a legal holiday, Defendant’s petition was timely.
Good piece on the above from Illinois Lawyer NOW.
Posted by Peter
on June 03, 2008
I was sitting in court at Daley yesterday waiting for my case to be called and I observed a young woman step up on a case who was not a lawyer which she readily admitted. After some questioning the judge angrily demanded that her firm get a lawyer over here immediately. The young woman made the call outside the courtroom and then returned saying that no one could come over and that the attorney had a broken leg and wouldn’t be available for 4 weeks (ever heard of crutches). The judge then asked whether or not there were children involved in the case (domestic relations matter) so the young woman went outside to make another phone call. After which she returned and said there are no kids involved and the judge finally granted her a 5 week status date.
Sending a non-lawyer or paralegal from your office to court is stupid at so many levels. By far the biggest reason being the behavior that you’re subjecting your staff too. I’ve seen the above happen more than once. Granted it’s not the non-lawyers fault but it’s akin to someone yelling at the ticket agent at the airport…it’s not her/his fault the flight’s 2 hours late but he/she is on the front line and will take the brunt of the criticism. Beyond that I think you’re probably opening yourself up to being accused of unauthorized practice of law and you’re certainly not helping your relationships with opposing counsel or the court.