CBA Municipal Court Pro Bono Panel Program Municipal Procedure Guide 1 February 2011

Transcription

1 CBA Municipal Court Pro Bono Panel Program Municipal Procedure Guide 1 February 2011 I. Initial steps A. CARPLS Screening. Every new case is screened by CARPLS at the Municipal Court Advice Desk. Located at the Daley Center in the Clerk s office Room 602, CARPLS assists pro se litigants in the areas of eviction, consumer/contract, and tort matters. The Desk staff will assist with the drafting of pleadings for the clients to file pro se. Clients in need of direct representation will be referred to other legal aid programs. The Desk is open Monday through Friday from 8:30 AM to 4:30 PM. Clients will be seen on a first come first served basis. Services at the Desk are free to low-income residents of Cook County. CARPLS will screen cases for program eligibility and will consider cases where one party is pro se and a jury demand has been filed. CARPLS will also screen the cases for merit, income eligibility, and other criteria, such as removing cases where a declaratory action is only needed or where the potential client may not be a good fit for pro bono representation because they are unlikely to be responsive, frequent fliers, etc. B. Types of Cases. The most common kinds of cases in Municipal Division are premises liability, vehicle collision, subrogation, consumer fraud and contracts. C. Referral Process. The CBA Liaison is responsible for placing the cases referred by CARPLS with a volunteer attorney or law firm, and tracking the status of the case until completion. The CBA Liaison is the contact for any questions or issues that may arise. The CBA Liaison contact information is: Megan McClung mhmcclung@gmail.com cell: Special thanks to attorney John Leovy for sharing his Municipal Division expertise to create the content of this guide. Page 1 of 12

2 The referral will be sent by and will include the following information: Case name, File number, Client contact information, Next Court Date, Status and a Short Summary of the Case. You or your office will need to obtain the case documents by copying the court file. D. Conflicts Check. Determine if your firm has a conflict with the case. After reviewing the file notes and/or speaking with the client, confirm with the CBA Liaison whether your firm accepts the pro bono case referral. Upon acceptance, file your court appearance at or before the next court date. II. Framing the Issues: Types of Motions and Where to File Them There are two distinct phases in the life of your Municipal Division case: before arbitration and after arbitration. Before arbitration, all pre-trial issues are resolved in courtroom After arbitration, all issues are resolved in the trial room to which the case is assigned. A. Motions in Courtroom Routine motions (8:45 a.m. in 1501) Certain motions are considered routine by courtroom 1501 and are entered almost automatically. A routine motion is granted automatically if the court does not receive notice that a party objects. If a party objects, then re-notice the motion on one of the regular motion calls. If you receive notice of a routine motion from the opponent and you object, call the courtroom and let the clerk know and the motion will be stricken. The attorney will then have to bring the motion on one of the regular motion calls and you will have an opportunity to argue the merits. 2. Regular Motion Call Most pre-trial motions in the Municipal Division are heard in courtroom 1501 at 10:00, 10:30, or 11:00 a.m. every day. Hearing dates are typically set at least 5 business days after the motion is filed unless you specify the next desired available date and time. Each of these three motion calls begins with agreed motions. Accordingly, if your motion is not controversial, consider calling your opponent ahead of time and asking if you can agree on what the order will say. This is particularly common with motions to compel, as the parties can usually agree on the time period to answer written discovery and present a witness for deposition. If you work out an agreement, check in with the court clerk before the motion call, tell her your motion is agreed, and she will call your motion before she calls the contested motions. Page 2 of 12

3 3. Contested Motions with Briefing Schedules More complex motions presented on one of the regular morning calls may require a briefing schedule. Most plaintiffs want briefing schedules to oppose motions to dismiss and motions for summary judgment. A typical briefing schedule allows 28 days for the response, 14 days for the reply, and sets a hearing 7 or more days after that. The parties will then fill out one of the standard briefing schedule orders, which sets the hearing on the motion in 1501 at either 1:30 or 2:00 p.m. The party filing the motion must provide to the court courtesy copies of the motion, response, reply, and relevant pleadings. The form order setting the briefing schedule must be followed precisely. The court will strike your motion if you do not follow the procedure. 4. Emergency motions Most emergency motions are brought at 9:00 a.m. Emergency motions to continue arbitration are brought only at 1:15. Essentially, what makes a motion an emergency is that the movant has some good reason why he needs relief before the motion could be heard if it were noticed on the regular call. Therefore, if you have to bring a motion on an emergency basis, be sure to have a good reason to do so. In addition, please note that 1501 does not hear motions to compel on its emergency call, so you must file motions to compel on or before discovery closes. 5. Motions to Continue Arbitration If for any reason you must re-set the arbitration date, bring a motion in courtroom 1501 at 1:15 p.m. If you have to bring such a motion, bring it as far in advance of the arbitration date as possible. If you must bring a motion to continue arbitration, attach an affidavit signed by the witness whose unavailability makes the motion necessary. In a pinch, you can file an affidavit signed by another person with knowledge of the witness s availability issue, which may in the worst case scenario be the attorney bringing the motion. B. Motions in Trial Rooms Motion practice may continue even after your case has been assigned to a trial room. The trial room can accommodate almost any issue, including motions for leave to take discovery, motions to dismiss, and motions for summary judgment. Most trial rooms hear motions at 9:30 a.m. every day, but you should check with the clerk in each trial room for each judge s procedures for hearing motions. III. Form orders The Municipal Division relies heavily on form orders, especially in courtroom If the court has created a form order for a particular issue, you must use that form. Due to high Page 3 of 12

4 case volume, clerks require forms whenever possible because it helps them code dates in the computerized docketing system, which the court uses to set deadlines. The orders described are the ones you are most likely to see in your practice. If your motion calls for a form order and you do not present it, the clerk will let you know. Whenever you draft any order, the original stays with the judge, you give one copy to your opponent, and keep another for yourself. Therefore, you will either have to hand-write the order three times or use two sheets of carbon paper which are available in the courtroom. The only orders that do not require insertion of separate carbons are Rule 218 Intake orders and the blank order. A. Progress Call Order This order sets a final date for the plaintiff to serve all parties, allows for appointment of a special process server, and may authorize discovery to commence on all parties presently served. The form is green and the plaintiff s attorney will fill out this order if necessary. If your case is on the progress call, then you know that the plaintiff has not yet served one of the defendants. You should check the board outside 1501 to check on the progress call date. The board will either list a new progress call date or say answer call, which means that the plaintiff must appear before the judge to explain why he has not yet served everyone. B. Discovery Closure and Arbitration Order This order is one of the most important orders in the life of your case. It sets that All Discovery Close ( ADC ) date, which is the date by which you must have completed all discovery. You will get the ADC date on the status call from the board outside 1501 on your status date. The plaintiff s lawyer typically fills out this order and sends it to you, but you should check the board yourself and diary the relevant dates. The ADC date also determines how quickly you have to issue written discovery and resolve any discovery issues. If you need to file a motion to compel, you must do so before the ADC date or your motion will be stricken, and 1501 does not recognize emergency motions to compel. The practical effect of this rule is to force you to issue any discovery requests well before the ADC and to issue deposition notices for a date before the ADC. If you fail to issue your written discovery requests on time, your opponent can just ignore your request and you will have no recourse. If you need more time for discovery and you have good cause, consider filing a motion to extend the ADC. However, motions to extend the ADC are not granted routinely. Short discovery periods are the norm in the Municipal Division. See Circuit Court Rule C. Compelling Order This is one of the most consequential orders in the system. This form order has an automatic penalty provision: Failure to comply with the specific terms of this order will result Page 4 of 12

5 in the plaintiff/defendant being barred from testifying and presenting any evidence at the arbitration and/or trial of this matter. The order also provides that the above stated sanction shall remain in effect until removed by Order of Court upon motion by the party against whom the sanction applies. Take this order seriously and expect that it will be enforced strictly. D. Contested Motion Briefing Schedule Order Use this form when you file a motion and your opponent wishes to respond in writing. It sets dates for a response, reply, and a hearing. The most common motions using this form are Motions to Dismiss, Motions to Dismiss, and Motions for Summary Judgment. Be particularly careful about complying strictly with the courtesy copy rule and obtain a receipt from the clerk in chambers behind E. Order Resetting Arbitration Hearing Use this order when the court continues your arbitration. F. Order allowing testimony by telephone at arbitration If you believe your client will not be able to appear in person for the arbitration, seek leave for him to appear by telephone. The Arbitration Center has speaker phones available. G. Judgment on Award of Arbitration Order Enter this form order if you win the arbitration and your opponent does not reject the award. Failure to timely reject an arbitration award waives a party s right to a jury trial. H. Trial Room Assignment Order (pink form) If one of the parties to an arbitration has rejected the award, use this order on the status date to fill in the trial room and intake date, which will be posted on the board outside Typically the plaintiff s lawyer will fill out this order because if he fails to do so his case will be dismissed for want of prosecution. I. Continuance Order (status/pretrial/trial) This form is most commonly used in trial rooms to re-set trial dates and set dates for status or pre-trial hearings. J. Rule 218 Case Management ( Intake ) Order Use this order on intake in the trial room. Fill in the blanks and be over-inclusive. The purpose of this order is to inform the court generally what the case is about, what the special Page 5 of 12

6 damages are, and to set basic pre-trial rules. Follow this order closely. If you forget something, move to supplement or amend the 218 order, which is usually granted. K. Dismissal Order This is the proper form to use when you settle your case. If you are the defendant and you wish to present the dismissal order ex parte, you will need a stipulation of dismissal signed by plaintiff s counsel. L. Transfer Order When your trial judge decides for some reason to recuse herself from the case, fill out this order and take the file to courtroom 1303 for reassignment. M. Blank Order form Use the blank form for other situations. Memorize and write in the following: This cause coming before the Court on the motion of [PARTY] for [TITLE OF MOTION], all parties having received due notice and the Court being advised in the premises, it is hereby ordered: Then write the relief ordered clearly. If you are moving for a specific form of relief under a specific statute, specify the statute and the relief. IV. Motions Addressing the Pleadings. The same motions used to address the pleadings in Law Division are applicable to the Municipal Division. A. Bills of Particulars and Motions (735 ILCS 5/2-607). If your opponent s pleading is so wanting in detail that it cannot be answered, consider filing and serving a demand for a bill of particulars, and moving to strike the pleading if your opponent does not respond. B Motions 735 ILCS 5/2-615 authorizes motions challenging the complaint s legal and factual sufficiency. A motion to dismiss brought under section attacks the legal sufficiency of a complaint and alleges only defects on the face of the complaint. C Motions Page 6 of 12

7 735 ILCS 5/2-619 authorizes motions raising certain defects and defenses to all or part of a complaint. The defects and defenses that can be challenged in a motion include lack of subject matter jurisdiction, statutes of limitation and repose, and other affirmative matter. A motion implicitly admits the legal sufficiency of the complaint attacked. Therefore, file a motion before you file a motion. D. Combined Motions: 735 ILCS 5/ This statute authorizes and arguments in a single combined motion. If you choose to bring such a motion, you must meticulously divide your motion into discrete parts and identify in each part the statutory basis for the relief you seek. When you draft the order granting or denying your motion, you must also specify under which statute you obtained which form of relief. E. Exception: Small Claims (SCR ). Illinois defines a small claim as a civil action based on either tort or contract for money not in excess of $10,000, exclusive of interest or costs. Illinois Sup. Ct. Rule 281. (Municipal Court cases in the First Division are those with damages claimed of no more than $30,000.) Virtually no motion practice is allowed in a small claims case. SCR 287(b) provides that all motions, other than motions and motions for substitution of judge, may be brought only after obtaining leave of court. V. The Answer and subsequent pleadings. An answer implicitly concedes the factual and legal sufficiency of the complaint. This means that you should raise any or issues before you file your answer. A. SCR 286(a) No Answer Needed in Small Claims If your case is a small claim, do not file an answer but do file an appearance. B. Affirmative Defenses You should file affirmative defenses with the answer. If the facts you learn in discovery justify other affirmative defenses, you should seek leave of court to add them. C. Counterclaims A defendant may bring a claim against the plaintiff or a third party. Counterclaims may be filed with the answer and must be made a part of it and designated separately as a Page 7 of 12

8 counterclaim. If you do not file a counterclaim with the answer but want to do so later, you must seek leave of court. If the party you are suing in the counterclaim already has an appearance on file, you do not need to serve her with process, but may simply serve it on her attorney instead, per 735 ILCS 5/2-608(b). However, if your counterclaim seeks to bring a third party into the case, you must serve that party with process. Counterclaims require stating an amount in controversy in the caption and paying an additional court fee. D. Amended Pleadings Pleadings may be amended on just and reasonable terms. 735 ILCS 5/2-616(a). VI. Discovery Municipal Division cases have short and firm discovery periods assigns an All Discovery Close ( ADC ) date to every case at the initial status. The court rarely extends the ADC. Because discovery deadlines in the Municipal Division are short and there are no routine case management hearings, you may need to file a motion to compel in courtroom requires that you file a motion to compel before the ADC and it does not recognize emergency motions to compel, so plan ahead. A. Written discovery 1. Although Supreme Court Rules are the rules governing all discovery in Illinois, Rule 222 applies in Municipal Division cases and limits the amount of discovery that is allowed. 2. File and serve standard written discovery as early as possible. Your standard discovery should contain Rule 213 Interrogatories (including Rule 213(f) trial witness interrogatories), a Rule 214 Notice to Produce, a Rule 206 Notice of Deposition, and a Rule 237 Demand that conforms to both the Notice to Produce and Notice of Deposition. Feel free to use the standard interrogatories published along with Supreme Court Rule 213 as a model for your own interrogatories. 3. Object appropriately when answering written discovery. You should make your legal objections to a plaintiff s written discovery requests as precisely as you can, and get them on file within the 28-day limit set forth in Rules 213(d) and 214. Page 8 of 12

9 4. Assert privileges. Review Supreme Court Rule 201(n) for asserting a privilege in response to a discovery request. For example, the HIPAA statute bars presenting medical records of clients and non-party accident victims without their consent. 5. Produce in discovery the evidence that you will need at trial. What you do not produce in discovery may be barred at trial. 6. Answer 213(f) witness interrogatories in your initial discovery answers. Even if your opponent forgets to send 213(f) witness interrogatories, you should provide the information required by the rule. 7. Be very careful when you receive a Rule 216 Request. The consequences of failing to respond appropriately after receiving a Rule 216 Request can be devastating. B. Depositions SCR 222(f)(2), which limits discovery in Municipal Division cases, permits a party only one deposition without leave of court. This means that you can take the either the plaintiff or defendant s deposition as of right, but will need either your opponent s agreement or a court order to take another. VII. Summary Judgment (735 ILCS 5/2-1005) You can bring a summary judgment motion either in 1501 or in the trial room to which you are assigned. If you plan on filing your summary judgment motion in the trial room, consider presenting it at the initial intake hearing. If your case is a small claim, you must obtain leave of court to file a motion for summary judgment. VIII. Arbitration Mandatory arbitration is assigned to all actions filed in the Municipal Division involving personal injury (regardless of whether a jury demand has been filed) and those actions for property damages or breach of contract in which a timely jury demand has been filed, seeking money damages only, not to exceed THIRTY THOUSAND DOLLARS ($30,000). Circuit Court of Cook County Rule A. Mandatory arbitration will be scheduled no later than two hundred eighty (280) days from the date of filing the case. The ADC date will be at least thirty (30) days prior to the mandatory arbitration hearing. After a case is assigned to the mandatory arbitration calendar, the discovery closure date shall not be changed Page 9 of 12

10 except by leave of court for good cause shown. Circuit Court of Cook County Rule You must participate in mandatory arbitration in good faith. SCR 91(b). If the panel finds that you did not participate in good faith, you will be barred from rejecting an adverse award. Supreme Court Rules govern mandatory arbitration. 9. Supreme Court Rule 90(c) is one of the most important rules applicable to arbitrations. Proper use of Rule 90(c) allows you to move into evidence certain documents without having to call a witness to authenticate or lay the foundation for them. 1. Submit a 90(c) packet to your opponent at least 30 days before arbitration. See 90(c) for the list of documents that can be offered into evidence without foundation or other proof at arbitration. Also, take note of the June 2008 amendment to Rule 90(c): The pages of any Rule 90(c) package submitted to the arbitrators should be numbered consecutively from the first page to the last page of the package in addition to any separate numbering of the pages of individual documents comprising such package. 2. Check your opponent s 90(c). Move to strike documents not authorized by the rule. For example, police reports may be stricken from 90(c) packets because SCR 236 provides that they are not business records. Similarly, statements or letters prepared for the lawsuit that are not properly certified may also be stricken from your opponent s packet. 3. Offer your 90(c) packet at the beginning of the arbitration. Once a 90(c) packet is received in evidence at the arbitration, the documents contained in it are evidence and any party may argue conclusions that can be drawn from them. 4. Bring copies of statutes, ordinances, and cases you intend to use. Arbitrators sit as judges of both the law and the facts, you may make legal arguments at arbitration. Although such materials are not typically considered evidence that must be submitted in a 90(c) packet, it is a good idea to inform the panel at the beginning of the arbitration that you intend to rely on such materials. D. Unless you hire a court reporter, the arbitration is not recorded. Keep in mind that hiring a court reporter for arbitration can be a double-edged sword. If you bring a Page 10 of 12

11 court reporter, the testimony can be used later for impeachment at trial. However, the same record can be used to impeach the testimony of your witnesses. E. Rule 237. Comply in good faith with plaintiff s Rule 237 Demand to produce witnesses at arbitration. Failure to comply with Plaintiff s proper Rule 237 Demand may result in an order finding that you participated in bad faith and you will be barred from rejecting an adverse award. F. Deadline to reject. Rule 93(a) allows only 30 days to reject an award, which includes paying a fee of $ G. Judgment on Arbitration ( JOA ). If no party rejects the arbitration award, 1501 will send all attorneys of record a post card setting the case on the JOA call. If you won the arbitration, appear on the JOA call and enter the judgment in your client s favor. IX. After the Arbitration: JOA and Trial After arbitration, a party may reject the award or accept it. If no party rejects, the case is over. If a party rejects, the case is assigned to a trial room will send you a post card telling you what the next phase will be. One of two things will occur, as follows. A. If neither party rejects the arbitration award sends out a post card notifying the parties that no one has rejected and setting the judgment on award ("JOA") date. The JOA is about 2 weeks after the 30-day deadline for rejecting has passed. If you won the arbitration, appear for the JOA call, fill out the JOA form, and approach the clerk to get your award entered. Bring the arbitration award with you so the clerk can check to make sure your JOA was filled out accurately. If you do this on time, you will have no problems. If you miss the JOA call, you may still be able to enter a judgment on the arbitration award on the regular motion call; Rule 92(c) authorizes any party to move the court for entry of judgment and failure to reject on time is usually construed as a waiver of the right to reject. B. If one party timely rejects. If one of the parties rejects the arbitration award, 1501 will assign the case to a trial judge sends out a post card notifying the parties that there has been a rejection and setting a new status date, which is when you check the board outside 1501 to find out your trial room. The board has a computer-generated list of cases and gives the trial room assignment and intake date, which is when you show up and fill out the Rule 218 pre-trial order. You receive the post card shortly after the 30-day time period for rejecting has passed. The post-arb status date is Page 11 of 12

12 about 2 weeks after, and the intake date another 2 weeks or so thereafter. If you are plaintiff, you should not miss that status date. Be there on time to fill out your order and get it stamped. If you do not appear on time, your case may be DWP'd. The following general procedures apply if your case is assigned to a trial room. A. Intake (SCR 218 pre-trial order). This is your initial appearance before the trial judge. The purpose of a Rule 218 order is to give the judge an idea of what the case is about and what the special damages are likely to be. Although 218 orders can be freely amended, you should list every witness you are likely to need at trial on the intake order. B. Pre-Trial Conference. Some trial judges require a pre-trial conference before the trial date, for ruling on motions in limine or jury instructions, or to see if the case can be settled. C. Always Be Prepared for Trial. Several cases will be set for trial on any given day. This means that you may end up preparing, appearing, and answering ready for trial only to find that your case is continued to another day. On the other hand, you have to assume that the case will proceed on its trial date, so be prepared. The following steps will help: 1. Prepare motions in limine, jury instructions, a statement of the case, and a witness list. 2. Make copies of any exhibits you plan to use and select any significant documents you need to have enlarged for the jury. 3. Prepare an outline opening statement and closing argument. 4. Prepare for voir dire. You may want to take a list of questions you want to ask for your case. On the other hand, some trial judges offer little opportunity to question jurors. Ask your judge what her practice is before jury selection begins. 5. If you answer ready on your day of trial, be ready. You should expect that your Municipal Division trial will begin and end in one day. Page 12 of 12