Illinois and Federal Civil and Criminal Procedure Local Practice Overview. Illinois State Bar Association Basic Skills Course

Transcription

1 Illinois and Federal Civil and Criminal Procedure Local Practice Overview Illinois State Bar Association Basic Skills Course 2009 Prepared by: J. Randall Cox Feldman, Wasser, Draper and Cox 1307 S. Seventh Street Springfield, IL Telephone: (217) Fax: (217) J. Randall Cox. All rights reserved.

2 I. Introduction. The following is intended to provide some general guidance beyond the basics learned in law school. It will certainly not answer all questions, but I hope that it will provide you with some ideas to locate answers. I have not reproduced sections of any of the various codes or rules which may apply as I assume you can locate these. Further, although there are broad rules and codes which bear on procedure, most courts have one or more sets of local rules. Additionally, there are often many nuances of practice in various courts which simply are not documented. II. Suggestions for determining the appropriate procedure. Certainly the most important resources to begin with are the applicable codes and rules for the forum in question. These include, as you know, the Illinois Code of Civil Procedure, the Illinois Supreme Court Rules, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Bankruptcy Rules and so on. In addition to the foregoing, however, there are often substantive provisions which may bear on the general rules, such as provisions in the Illinois Marriage and Dissolution of Marriage Act, Domestic Violence Act, and the Illinois Mortgage Foreclosure Law. Further, most jurisdictions have some sort of local rules. Most of the Illinois circuits have rules that govern conduct of the counties within the circuit, and some courts have rules beyond these. See for example the rules of the Seventh Judicial Circuit: (It only has family rules), or (Madison County/3rd Circuit),or for Cook County: The United State District Courts operate in the same manner. For example, each of the three districts of this court in Illinois have local rules. Additionally, some of the divisions within the districts have their own rules, and some of the district judges and magistrates have their own rules. See the rules of the United States District Court for the Central District of Illinois: See the rules of the courtroom for United State District Judge Jeanne Scott at this location.

3 And the rules of the United States Magistrate for the Central District of Illinois Byron Cudmore at this location. I continue to find that many lawyers, both young and old, often are not familiar with published rules and procedures. Often the answers are contained within the rules. Certainly however, there are many cases where the rules may seem overwhelming, or you cannot determine the answer. As noted above, there may be situations where what is published is insufficient. Other sources for particularly local procedural questions are court clerks and other personnel, your own colleagues who may have been in similar situations that you are, a mentor if you have obtained one, and often the judges themselves. You should use caution particularly when obtaining information from court clerks, because there are many very knowledgeable and helpful individuals, but there are also some who provide poor information. As to approaching judges themselves, most want their courtroom to run efficiently, and are open to procedural questions. If you wish to determine whether a judge would speak to you about one of these issues, I suggest contacting their clerk or court clerk to determine if the judge is open to such questions. Another resource which I believe cannot be underestimated is the knowledge of individuals you can meet through the various bar associations. In addition to locating local rules, many courts websites contain the forms, fee schedules, and calendars the courts utilize. III. Some thoughts on discovery. Since discovery is regulated by various rules, and comprises a significant amount of what lawyers involved in litigation do, I offer a few comments on the process. Illinois Supreme Court Rules (hereinafter abbreviated SCR) govern discovery in State court, and Federal Rule of Civil Procedure 26 primarily governs in Federal Court. As discovery is much more limited in criminal cases, Supreme Court Rules govern in state court, and Federal Rule of Criminal Procedure 16 addresses proceedings in US District Court. As noted above, you should be aware that there are often local rules that bear on the foregoing. For example, refer to the website for the United States District Court for the Central District of Illinois at the above address for the rules that govern there. In addition, in criminal cases there are some important cases that apply such as Brady v. Maryland, 83 S.Ct (1963), relating to the production of any exculpatory evidence in the possession of the prosecution, and the Federal Jencks Act 18 U.S.C. 3500, which addresses the production of the notes of government agents.

4 As to discovery in State court, note the following: A. Interrogatories Small Claims cases have their own rule. SCR 287. LM Cases, those seeking amounts between $10,000 and $50,000, also have their own rule which implements simplified procedures. SCR 222 You are required to make reasonable attempts to resolve discovery disputes. SCR 201(k) Generally discovery materials do not get filed with the courts. SCR 201(m) Interrogatories are limited to thirty including sub-parts. SCR 213. There are standard interrogatories approved by the Supreme Court for motor vehicle, matrimonial, and medical malpractice cases. These interrogatories exceed the thirty, but are approved. SCR 213(j) Responses to interrogatories are generally due within twenty-eight days after service. SCR 213(d) However, this is often exceeded in practice. You are required to categorize witnesses into one of three categories. These categories are lay witnesses, independent expert witnesses, and controlled expert witnesses. SCR 213(f) The information disclosed pursuant to SCR 213(f) interrogatories, and/or at a deposition, limits the testimony that a witness can give on direct examination at trial. SCR 213(g) A party has a duty to supplement discovery answers when new information is discovered. SCR 213(i) B. Document production Rule 214 governs requests for production of documents, and also the inspection of tangible objects and real estate. SCR 214 The rules does not limit the number of categories of documents that can be requested.

5 There is also a duty to supplement responses to document requests. SCR 214 C. Requests for Admissions of Fact or Genuineness of Documents Request to Admits have typically been under utilized, but are very powerful discovery tools and should not be overlooked, particularly in document intensive cases. SCR 216. Unlike late responses to Requests for Production and Interrogatories which are commonplace, you should be extremely careful to comply with the twenty-eight day deadline and other requirements of Supreme Court Rule 216. In general, the courts have very strictly applied the provisions of Supreme Court Rule 216, which include deeming requests not timely or properly denied, or objected to, as admitted. Of course, this can also work to your advantage. D. Motions to Compel Supreme Court Rule 201(k) addresses obtaining compliance with discovery requests. You must make reasonable efforts, generally in writing, to attempt to resolve the differences with opposing counsel, before resorting to the Court. This can be utilized either to compel answers or responses where you have not received any, or if the responses you have received contain objections you do not believe are appropriate. Notably, there are various sanctions that a court could impose for failure to disclose information in discovery. E. Supreme Court Rule 222 governs LM cases. As noted above, LM cases are those that fall within the $10,000 to $50,000 range. SCR 222 requires the Plaintiff to file an affidavit with the complaint stating whether damages exceed or do not exceed $50,000. SCR 222 requires automatic disclosure of certain basic information. SCR 222 also limits interrogatories and depositions in a manner similar to cases above $50,000. SCR 222 however prohibits evidence depositions without leave of court.

6 SCR 222 contains specific language allowing the exclusion of undisclosed evidence. Unlike SCR 213, Supreme Court Rule 222 does not specifically reference the ability to obtain more than thirty interrogatories. IV. Discovery in U.S. District Court. Federal Rule of Civil Procedure 26, and many of the corresponding local rules, also provide for automatic disclosure of certain information. The Federal rules also provide for a scheduling conference and discovery plan. Exactly how discovery issues are handled varies greatly from court to court. Federal Rule of Criminal Procedure 16 provides for limited discovery in Federal Criminal cases. You must make a specific written request for such materials. Federal Rule of Criminal Procedure 26.2 also applies, as does the previously referenced Jencks Act. You also need to be aware there are reciprocal obligations upon defense counsel relative to discovery. V. How do you determine what discovery to seek. Discovery varies greatly from case to case, but in general you should review the complaint, answer, and similar pleadings at the outset to determine the areas of inquiry for discovery. In addition, it is often helpful to review the pattern jury instructions, if available, that might be utilized to identify other areas. The foregoing will not necessarily identify some areas such as impeachment type issues. As to documents, you will need to obtain appropriate information to lay foundations for documents. In certain areas, particularly with medical and mental health records, there are rules relating to various privileges that you must observe. For example mental health records generally require prior leave of court, and the return of the documents to the court. Many medical records also cannot be obtained without the use of a release signed by the patient. Several important areas that should not be overlooked in discovery are the identification of witnesses and the identity of documents. It is beyond the scope of this section to provide specific recommendations as to discovery areas. However, there are many excellent articles and texts on the subject. Both the Illinois State Bar Association and American Bar Association websites are good resources for short articles on specific topics. The ISBA site permits members to do various types of searches on many years of its area specific newsletters.

7 VI. Depositions. Supreme Court Rule 206 governs depositions. You must provide notice of the deposition in a particular manner to the other party and affected parties. It provides for an entity to have a representative at the depositions. It also permits video depositions, if you advise opposing counsel of your intent to conduct the deposition in that manner. If you do so, you need to make the arrangements with the videographer prior to the deposition and provide that as well as other information. There is a three hour limit on discovery depositions. The rule provides for a method to protect a deponent from abuse. SCR 206 provides for specific procedures that the videographer shall use at the deposition. The rule provides for the taking of depositions by telephone, video conference, or other similar means. VII. Document Depositions. Do not overlook the possibility of obtaining records from third parties via subpoena. In state court, the typical practice is to serve a subpoena on a third party with a Notice of Deposition indicating that the deposition will not occur if the documents are produced prior to the deposition. Do not forget to provide copies of the subpoena to opposing counsel as well as copies of the documents you receive pursuant to the subpoena. SCR 204 governs. The notice must specify the appearance of the deponent is excused, and that no deposition will be taken, if copies of the requested documents are served on the party requesting by a particular date. When the requesting party receives the requested documents, that party must serve on the others, at least three days prior to the scheduled deposition, copies of the documents received.

8 The party that has received the documents must file a certificate of compliance with the court. The deponent that produces the documents can impose a reasonable charge for those, which the requesting party must pay. The parties that receive copies of the documents from the requesting party after production, are also required to pay a reasonable copying and delivery charge. The associated subpoena for production of documents is called a Subpoena Duces Tecum. A copy of any such subpoena must be attached to the Notice of Deposition filed with the court not less than fourteen days prior to the scheduled deposition date. VIII. Preparing for deposition. Not only should you prepare to take a deposition as to make it much more usable, you should also prepare your client if they are having their deposition taken. In general, you should not coach a client as to how to address specific questions. But, you should in general discuss with them the purpose of the deposition and the process. Having a witness that understands the purpose of the deposition can go a long way toward helping resolve the case either by settlement or trial. Generally you should tell your client to listen carefully to the questions asked at the deposition, and to ask for clarification if they are not clear about what is being asked of them. It is also generally advisable to provide only information that the examiner seeks. It can also be helpful if your client understands the broad issues in the litigation, the problematic issues, and any theme either party may be utilizing. As many clients are unfamiliar with the process, you should specifically tell them that you will be with them at the deposition. If it is likely that documents will be the subject of inquiry at the deposition, your client should be familiar with those documents. Most clients often want to bring their own documents to the deposition, but this is something I generally discourage. You should also discuss with your client the various types of questions which may be asked. It is often helpful to remind clients that assuming it is the truth, they can answer that they do not know or do not remember. Certainly advise them not to speculate if they do not know the answer to a question.

9 IX. Electronic Discovery Because of the prevalence of electronic storage and communication, you should often include specific requests in written discovery for such information in appropriate cases. This is an evolving area of the law, and the scope of such information is beyond this presentation. However, there are ample resources from short articles, to entire texts, relative to the discovery of electronic information. The information that can be retrieved includes drafts, as well as metadata. Often the retrieval of such information requires the obtaining of a consultant or expert in the retrieval of such information. X. Electronic filing of documents. The Federal District courts in Illinois have mandatory electronic filing. There is no charge for this service, however some require the completion of mandatory training to utilize the system. In each case, you must obtain a separate log-in from each court. You also have to have access to the Federal PACER system. When another party files a document, you receive an through which you are entitled to one free look, through PACER, at the document. From there, you can save the document. In short, to file a document, you simply convert or scan to.pdf format and upload it after logging into the court s website. The log-in process requires you to choose the category of document. You can modify most of the systems such that any support staff can also receive s with the one free look. However, it is the attorneys that receive the log-ins, which are not supposed to be shared among attorneys as it identifies you as the filer. The State courts of Illinois have varying degrees of electronic filing. Many of the counties have some electronic access to review their documents. Some counties, such as Sangamon, have only electronic viewing available through a for profit vendor. Other counties have free access. As to electronic filing, DuPage County for example, has it available. It is not mandatory however. I understand that DuPage has arranged this service through several vendors, and do not know whether the service is at no charge. XI. A few notes on criminal procedure. The Illinois Code of Criminal Procedure and related Supreme Court Rules are a virtual hodge-podge of requirements. The Criminal Code is currently undergoing revision. The practice under the Criminal Code varies greatly from county to county. In general, practice is driven more by the common law than the codes and rules. However, for the rules and procedures that do exist, it is extremely important to adhere to them in criminal cases. The failure to do so can often result in the waiver of the rights of your client.

10 In federal court, there are also fewer rules. Again, the local rules often vary the procedure. The primary difference in criminal procedure in state and federal court relates to the method of charging. In federal court, defendants generally are charged by grand jury. In state court, most counties generally charge by complaint, which then entitles the defendant to a preliminary hearing for the determination of probable cause. Other differences relate to the setting of bond. In state court, the practice in most counties is the setting of a bond that requires the posting of a specific sum of money. In federal court, there is typically a detention hearing. The Bail Reform Act applies, and in many cases there are presumptions against release. In others, however, there is a presumption that favors release on conditions. Other significant differences relate to sentencing and the nature of the offenses charged in federal court. The federal prosecutors have the ability to cherry pick the cases they charge. In short, the offenses tend to be the more serious ones, as well as those where the evidence is strong and a conviction likely. As to sentencing, in federal court, a complex set of guideline apply, known as the U.S. Sentencing Guidelines. Although the common law states the Guidelines are only advisory, most courts interpret them as nearly mandatory. XII. Alternative Dispute Resolution. Many courts also have either mandatory or optional alternative methods available to resolve disputes. For example, most child custody and visitation issues must now be mediated, prior to having a hearing. The individual circuits have rules which address this process. Many circuits also have rules requiring the referral of certain types of cases to mediation or arbitration. Due to the ever-increasing inclusion of ADR provisions in commercial agreements, you should always determine if such a clause applies to your dispute and whether you want to utilize that process.