Solo In Chicago…Grow Your Practice!

I finally got around to reading this case out of Sangamon County involving a trial court’s finding of indirect criminal contempt against a lawyer. It’s instructive specifically regarding lawyer conduct before a tribunal and I’m a self-labeled “contempt junkie” so that part of the case’s discussion is also useful if you have the same problem.

Briefly, a pro se client seemed to be unsuccessful in getting a motion to modify certain post-divorce financial obligations scheduled before the court although he did get a motion filed. Most courts have some local rule that says you need to set a motion/pleading for hearing in 90ish days from filing or it’s a nullity (you’d need to re-file…it’s treated as if it was never filed). Here, apparently the date of the original filing of the motion was important. Next, pro se client retains lawyer who files motion to set pro se’s previous motion for hearing and lawyer says the pro se motion was still timely BECAUSE it had been noticed up in the past but opposing lawyer had improperly appeared and that the motion set in court was stricken on that day w/o notice to pro se litigant.

And what does “new” lawyer for previously pro se litigant use as evidence of the above scheduling “issue”? An exhibit to his pleading which is a page from the judge’s court scheduling calendar.

Well, so then the case heads down the contempt road. Judge asks lawyer how/where he got the calendar page and lawyer says the clerk gave it to him and clerk denies this and there’s a whole contempt hearing sort of he said/she said between lawyer and judge’s clerk.

Lawyer is eventually held in indirect criminal contempt of court and fined $100 and required to apologize to the court. On appeal they modify to indirect civil contempt and remove the $100 fine. Short opinion and an interesting discussion of types of contempt.

I wonder how comfortable the lawyer is appearing in that judge’s/clerk’s courtroom these days.

So I had my first criminal trial down at the Cook County Criminal Court (26th & California) last week. As the defendant’s lawyer I had a pleasant experience…I thought my case was strong. Here’s a previous post about the case. Ruling to come next month so we’ll really see how “pleasant” it really was in about 30 days here.

One thing I did like about the criminal setting was my perception at least that those judges are used to making decisions and running trials. During most of my court work in civil land with many judges it feels like they want to avoid trials and avoid making decisions at all costs which often leads to unnecessary frustration and delay. Granted, it’s a fine line between encouraging settlement and unnecessary delay, but eventually like Richard Nixon supposedly said to candidate Dwight D. Eisenhower during the “fund controversy” during the 1952 election, “you’ve got to sh&$%# or get off the pot.”

Another learning point was one that young lawyers likely must learn repeatedly early in their careers (and perhaps non-young lawyers). And that is simply getting comfortable with the feeling of never really knowing everything and being 100% prepared. In the back of my mind I’ve often thought that at some point I’ll be real comfortable and confident heading into all of my meetings and particularly court appearances. But that’s not so and I don’t think that’s the nature of being an attorney. The reality is you’re constantly dealing with changing statutes, court rules, and different fact patterns and being all-knowing isn’t possible. I was nervous heading into my first criminal court case but in knowing the case backwards and forwards, doing the legal research, and talking with a few colleagues I was as ready as I possibly could be.

And that’s usually all you can do. Now to master that mindset for those future unusual cases…

Then don’t say anything at all! That’s the old adage at least. I wish I saw it followed more in the legal field.

I got to thinking about this recently when reviewing a letter/counter-offer written to me by an opposing attorney as part of negotiations in a dissolution of marriage (divorce) proceeding. Because in my example, the attorney (and ostensibly her client) were agreeing with us and on the substance doing exactly what we and they wanted. Simply, they were in agreement with me and my client about how to divide a marital asset. But, in the sentence before it’s stated that we agree to divide said asset in such-and-such way, the attorney states, “Client X has done nothing to contribute to the acquisition of assets in recent years.”

Now, I’m not naive here, there’s a place for criticism and threats as a negotiating tactic when you can back them up and when they serve a purpose. But, if you’re in agreement, what purpose does the “dig” serve? The purpose it often serves is to upset the recipient to an extent he/she may no longer be too thrilled about settling something that you just agreed to settle.

Now, why’d ya make that stupid comment again?

The definition of an “Appearance” for court purposes – a piece of paper that gets filed that says I lawyer am representing a client as sayeth on the Appearance I’ve filed.  And you’re supposed to file this BEFORE you appear in court to represent a client, with a rare exception or two.  But I always see this abused in two ways and way too often judges let it slide.

First, like I witnessed today, a lawyer shows up a couple hours after the case had been resolved, had not brought any kind of motion (just asks the clerk to have the case re-called), had NOT filed his Appearance and then steps up as if he’s the attorney of record.  If I’m a judge I simply do not let that person address the court until I see a filed Appearance. It’s rife with potential trouble notably in terms of inadvertantly subjecting a person to a court’s jurisdiction where it may not otherwise lay.  And as a laywer it’s just tacky…take 5 minutes, prepare an appearance, drop it in the no fee box, then, go to court.

Second, it perhaps bothers me more when a non-party, non-attorney is allowed to step up and address a court on behalf of a litigant who chose not to appear. And this one has hurt clients of mine more than once where I’m ready to take a default say Order of Possession or something in the landlord/tenant area and I can’t get this done because a judge lets a non-party “represent” a party in court (why have lawyers if non-lawyers can just step up for another party?).

Just a funny nugget from Chicago Lawyer’s monthly Q&A column with appellate lawyer Karen Kies DeGrand:

What is the strangest thing that ever happened to you as a lawyer?

This happened probably about 10 years ago. I was in Springfield for a case that was being argued in the Illinois Supreme Court and our opponent showed up apparently drunk. You almost couldn’t believe your eyes. When you go to the supreme court for an argument the personnel at the court know everybody who’s in the building; they are keeping a very close eye on everything, even pre-9/11. They were cognizant of what shape this guy was in, but ultimately he got up there and he was relatively inappropriate. My thought, at the time, was we better win. But we did, but obviously it was one of those things where I don’t think I will ever see that again.

A good evidence resource:  Illinois Evidence with Objections in Family Law Cases by Gunnar Gitlin.

Got that one recently from the bench…extemely upsetting. Or another way of phrasing it is “I don’t want to hear your logical, law-based arguments…I’ve made my decision regardless of the facts and the law.”

Ya know the one where George Costanza had the desk at Yankee Stadium where he could sleep in a hidden compartment and then Jerry called in a terrorist threat to get Steinbrenner to leave George’s office so George wouldn’t get caught napping…

STEINBRENNER: Costanza here is busting his ass on those hats.

JERRY: think I’ve changed my mind.

STEINBRENNER: You don’t want them, then goodbye.

GEORGE: ??? sir.

STEINBRENNER: Well what do you want instead?

JERRY: What?

STEINBRENNER: Well, you’re the terrorist. You’re going to want something.

JERRY: I guess it would be nice if you called all the ticket holders if the game was going to be rained out.

That was absolutely the first thing that came to mind today when I got a call from a judge’s clerk telling me that she had an emergency and won’t be on the bench tomorrow. I’m not criticizing the absence, judges are human too, rather complimenting the call that our case is not going to be handled tomorrow rather than getting everyone downtown, waste time, money and days off from work, and then get the continuance.

It’s nice when the Court can call the lawyers when Court gets “rained out”!!!

I encountered the first instance in my entire career where a client would have been better off having filed a Counter Petition for Dissolution of Marriage, where his spouse initially filed for divorce. I used to think that the filing of Counter Petitions in the divorce setting was one of the bigger wastes of time going and just a bill padding technique used by certain firms. And oftentimes it is, but particularly in Cook County this can be a smart move.

Why?

Because a divorce case can be dismissed just like the $2,000 collection case and if you’ve gotten a lot of favorable rulings or if you have a judge who you think “likes” your case you probably don’t want to enable the other spouse to just dismiss the case and start-over in a different courthouse with a different judge who may NOT like your case quite as much. And this is pretty readily done in Cook County, you can file in one of the suburban courthouses and then dismiss and file at Daley. Or, you could likely dismiss your Daley case and re-file at Daley with little risk that you’d get stuck with the same judge. In less populated counties this likely isn’t as much of an issue because if you dismiss you’d probably be re-filing before the same judge regardless.

For example, I observed a situation (was involved in the case post-decree) where case is filed in suburban Cook and proceeds for some 6 months up to a pre-trial conference with judge who gives very favorable recommendation to W. But H was petitioner in case so he just dismisses the case and re-files a month later down at Daley. Well, the Daley case proceeds to trial and H gets a great result. Now W doesn’t feel too great…and this feeling could likely have been avoided if a Counter Petition had been filed.