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This month it’s been the old Motion to Vacate pursuant to 735 ILCS 5/2-1203, generally due to improper notice on the part of the moving party. These aren’t quite as juicy as the 2-301 motions where you can wipe out maintenance awards, $500k in back child support, and even wed those who were seemingly previously divorced, but they’re a nice tool too. Because I’ve had three improper notice cases just this month due to failure to follow local rule 2.1 in Cook and Supreme Court Rule 11 (which the local rule refers you to)…particularly by pro se litigants and Assistant State’s Attorney (IDHFS cases).

Here’s the full rule:

Rule 11. Manner of Serving Papers Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts

Generally the zinger in these motions is that notice isn’t properly given at the party’s “residence.”

(3) by depositing them in a United States post office or post office box, enclosed in an envelope, plainly addressed to the attorney at his business address, or to the party at his business address or residence, with postage fully prepaid…

The moving party must ascertain the non-moving party’s residence and give the requisite notice at said residence, period. It’s classic for the moving party to make-up an address or send it to some address that was referenced in the court file 20 years ago. The good thing for you when you bring the motion to vacate is that your client should have everything in his control that can prove his residency…mail, leases, deeds, voters reg., drivers license, ect.

If you’ve got the Plaintiff that is, or at least according to this DOJ Study covered over at Law.com…

Plaintiffs won in 56 percent of all general civil trial cases. Judges ruled in their favor in 68 percent of the cases, while juries favored the plaintiffs 54 percent of the time.

The report was released Tuesday by the Bureau of Justice Statistics at the U.S. Department of Justice. The study is the first nationally representative measure of general civil bench and jury trials in state courts.

I would have thought the Plaintiff win percentage would be higher.

Not just a list of Chicago athletes but rather potential clients…market to those Chicago sports teams to build your domestic relations practice. Here’s another…bit player Jason Caffey from a few of the Bulls dynasty teams.

I’m as big a critic of the performance of the Cook County Sheriff’s Office as anybody, but is a office football pool something really worth of the I-Team’s attention? I think half the businesses in Chicago would be guilty of this transgression.

I finished up a very frustrating case this week that was quite eye-opening as it related to my client getting a fair shake before the court. I was representing an out-of-state Defendant in a courtroom that I don’t frequent against a Plaintiff and Plaintiff’s counsel that it seemed appeared in the courtroom regularly. Now look, I understand being friendly with the clerks and being comfortable in certain courtrooms, ect., ect. In the probate and domestic relations divisions of Cook County I’m very comfortable having practiced extensively in those divisions for 6+ years. Fine.

But when you’re before the bench justice must be blind and I felt as if it was NOT for two reasons.

First, despite our client’s having virtually zero contacts with Illinois, the Court denied our motion to dismiss the case for lack of personal jurisdiction. It felt like the Court wanted to let the Plaintiff bring the case here in its home forum despite the facts and the law. Second, the case is set for trial earlier this week at 930am. I have two cases at 930am so I check-in on this case and speak with Plaintiff’s lawyer who tells me to take my time and go off to my other case. I come back at 1015am and the P’s lawyer isn’t around. Then I come back at 11ish and a default judgment had been entered. Whatever happened to holding a case for a lawyer that checked in? They didn’t call the case the two times I was in the courtroom and opposing counsel wasn’t.

So we can probably vacate, yada, yada, yada…but it leaves a very sour taste in my mouth about the ability of certain courts to be unbiased.

I know I’ll be watching the implementation of Public Act 95-0846 closely relating to court appointed counsel in juvenile court cases (see a synopsis below from The Juvenile Justice Initiative). And note that the language is “requires” and thus mandatory. Maybe a business opportunity; something like the Capital Litigation Trial Bar.

Senate Bill 2118 (Sens. Raoul-Noland and Rep. Turner) – Right to Counsel at Time Petition is Filed

This bill requires the court to appoint counsel for a youth retained in custody immediately upon the filing of a petition. It also specifies that a detention hearing cannot be held until the youth has had adequate opportunity to consult with counsel. This bill is a result of the Juvenile Defender Assessment recommendations. Senate amendment #1 clarifies that the 40 hour rule is not affected. The bill passed the Senate and House unanimously. Public Act 95-0846.

There’s not enough of this quite frankly. Too much of what I observe is akin to an echo chamber of lawyers repeating the same arguments over and over. Or being too lazy to do any legal research to better represent a client. If you’re not making a creative sort of off-the-wall argument every few months or so, you may not be representing your clients effectively.

I fondly recall a Motion to Vacate a dissolution of marriage judgment our firm filed within the last couple years asking to undivorce two parties who thought they’d been properly divorced some 20+ years ago based on the Court’s lack of personal jurisdiction over our client at the time the Judgment had been entered. I remember my opposing counsel’s first call to me upon receipt of our motion…something to the effect of “Do you even practice family law?” Well, yes and I also know the code of civil procedure thank you very much. We didn’t really want to undivorce the parties but it was nice to knock some $100,000 off of an alleged child support arrearage.

I got to thinking about the above as I’ve followed the debate over a post-divorce/collection case recently, In re Marriage of Takata and Hafley (IL App. 3rd), Case No. 3-07-0175. Most of the commentators out there say that it was wrongly decided, and it very well may have been, but it’s some darn good and creative lawyering by the appellant (and the victor at the appellate level) win or lose. Haven’t heard whether or not it’s heading up for the Supremes to take a look at.

In a nutshell, the facts are simple, a custodial parent was attempting to collect a judgment of some $25,000 related to unpaid child support from her now remarried former husband. And the custodial parent (who’s a lawyer and represented herself) used 735 ILCS 5/2-1402(c)(3) to go after her former husband.

(c) When assets or income of the judgment debtor not exempt from the satisfaction of a judgment, a deduction order or garnishment are discovered, the court may, by appropriate order or judgment:

(3) Compel any person cited, other than the judgment

There’s a line of cases under this section of the ICCP that supports a judgment creditor’s stepping into the shoes of a debtor to sue a third party in the debtors stead. I.e., judgment debtor has access to $$ that he could recover from a third party but chooses not to assert his rights. So now judgment creditor asserts debtor’s rights against third party. So in the case above the custodial parent is allowed to collect a judgment against her former husband’s current wife’s IRA.

The critics say this is wrong because the current wife’s IRA isn’t “marital property” until a dissolution of marriage is filed between the father and his current wife.

Maybe so and I’ll let people far smarter than me figure that one out (unless it comes up in one of my cases of course), but in closing, I just appreciate some good old fashion creative lawyering when I see it.

Saw this in the Sunday Trib. regarding Goodwill’s YES! Father’s Project. Here’s an overview from the Website:

Goodwill is helping young fathers, aged 18 to 21, take responsibility for themselves, their children, their family and community with the YES! Fathers Project. The project has the endorsement of Stedman Graham, a well-known author, speaker and marketing executive, who often focuses on issues of diversity, urban youth and ethical behavior.

The young men participate in educational and leadership development components. Emphasis is placed on education and employment. Staff help participants earn their high school diplomas or GED, if necessary. The young fathers participate in community work experience, internships, job shadowing opportunities and are linked to adult mentors who provide guidance and stability.

Eligibility:

• Young fathers, aged 18 to 21
• Identified as being low-income
• Residents of public housing
• Resident of the City of Chicago

I don’t know about you but when I’m over at 32 W. Randolph it feels like I’m at the epicenter of family breakdown and if there’s anything I could do to fight this societal scourge I’ll do it. Selfishly, I don’t know why there aren’t more domestic relations referral program appointments over there to help everyone out…it doesn’t have to be pro se chaos over there.

Saw this little nugget in October’s Bar News:

A monthly series of free brown-bag luncheon seminars on Cook County Circuit Court mandatory arbitration and mediation procedures is co-sponsored by the ISBA Alternative Dispute Resolution Section.

The programs are conducted by the Law and Chancery Divisions from 12 noon to 1:45 p.m., usually on the second Thursday of each month, in courtroom 1905 of the Richard J. Daley Center. Future dates are Nov. 13, Dec. 11 and Jan. 8.

There is no charge to attend, but reservations should be made in advance by calling Rae Ferenzi at (312) 603-6078 or Patty Formusa at (312) 793-0134.

Seriously, if you keep your eyes open you shouldn’t have to spend a dime on MCLE requirements if you don’t want to.

Isn’t it? An order entered by a sworn-in judge is an enforceable order, no? I’ve been dealing with a particular judge in a case recently who seems to take the position that if he/she didn’t enter a particular order it shouldn’t be given as much weight or on an one occasion it should be ignored because he/she wouldn’t have entered it. A default order got entered by another judge but this other judge claims she wouldn’t entered an Order based on the evidence and proof of personal service. This is wrong! And very frustrating from the lawyer’s perspective. I’m contemplating my next move…