February 27, 2011

Appellatology Launches From SRMPC Unashamed-Toot-Your-Horn-Marketing Department; Mock Appellate Judges Wanted

Appellate lawyers are belt-and–suspenders types. We read the rules; then re-read the rules; then just to be sure, read them again. We check our cites; re-check our cites; then just to be sure, check them again.

We agonize over the legal briefs we write. And for good reason: more than 90 percent of appeals are decided on the briefs. We think our facts tell the story our judges need and want to read. We think our issues and arguments leave no room for doubt.

If there were a way to know if your brief does what you think it does, would you take it? Would your client want you to? If there were a way to know if your brief addresses the facts and the law appellate judges expect, would you take it? Would your client want you to?

Appellatology offers the way. We let you ask them. And you do it from the comfort of your office (or anywhere else you have a web connection).

Using the latest in web conferencing software, Appellatology puts together a mock panel of retired judges, senior lawyers, and academics to conference your brief, just like your appellate panel will. Only this time, you’ll hear it all before you file your brief.

We’ve stripped the process of unnecessary overhead expense. We’ve set it up so you can ask questions during the session. And everything will be recorded for your easy access, so you and your colleagues and your client can see and hear the session anytime.

What better way to tighten your belt and suspenders?

Learn more by clicking on the Appellatology button at the top of this page, or right here if you prefer. Rather talk to someone? Call me at the Steven R Merican PC Unashamed-Toot-Your-Horn-Marketing Department, 630-579-6460.

More Mock Appellate Judges Wanted
• Do you like reading the law?
• Do you have superior powers of analysis?
• Do you know good writing?
• Can you communicate your ideas and are you willing to speak your mind?

Then maybe you should be an Appellatology panel member.

Appellatology is building its mock appellate judge panel, and needs retired judges (trial or appellate), senior lawyers, and academics to fill the bill.

Why should you do it?
• Good pay.
• No travel.
• Geography not an issue because we do everything over the internet. (And you don’t need new software.)
• Enjoy the excitement of being part of a new service and working with other bright and terrific people.
• And it’s fun.

Call (630-579-6460) or email me (steve.merican@gmail.com) if you’re interested. I’ll be happy to tell you more.

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February 26, 2011

Condo President’s SLAPP Defense Against Developer Not Moot

John Walsh was the president of his condominium association. Certain members of the association felt the developer committed fraud in connection with the conversion of the apartment building to a condominium. So the association sued the developer.

Two companies and two individuals were involved in the condo conversion – Sixty Thirty LLC; Wright Management LLC; W. Andrew Wright; and James Wright. Andrew and James were members of Sixty Thirty and Wright Management, and another related company, Wright Development Group LLC. The condo association did not sue Wright Development.

About two months after the association filed its fraud lawsuit, the local alderman held a meeting to give the residents “a public forum to communicate the problems they had experienced with developers and contractors building and renovating condominium buildings in the ward.” Walsh attended the meeting, and spoke about problems at the condo and the fraud lawsuit.

During a “mingling” session after the meeting, Walsh was interviewed by a newspaper reporter about the problems at Walsh’s condo . Walsh referred to the developer as Wright Development Group” or “The Wright Group,” “Because that’s what it is. It’s the Wright Group. It’s the Wrights … [W]henever I think of the developer, I think of the Wrights because to me that’s the developer … I think of Andrew and Jamie.”

After Walsh’s interview was published in a local newspaper, Wright Development sued Walsh for defamation, alleging he knew the real identity of the developer was Sixty Thirty LLC, not Wright Development. Walsh asked the trial court to dismiss Wright’s complaint under the Illinois Code of Civil Procedure. Before the trial court ruled on that request, Walsh also asked the court to dismiss the case under the Illinois Citizen Participation Act. That Act prohibits SLAPP lawsuits (Strategic Lawsuits Against Public Participation) – cases against citizens who are sued for their actions in exercising their political rights. Walsh claimed his statements to the reporter were an exercise of his political rights.

The trial court denied Walsh’s request to dismiss under the Citizen Participation Act, but later granted Walsh’s request to dismiss under the Code of Civil Procedure. Walsh appealed the denial of his request under the Act. Even though the case had been dismissed, Walsh complained he was denied statutory immunity and mandatory attorney fees under the Act.

The appellate court ruled Walsh’s appeal was moot, and dismissed it. The appeal was moot, the appellate court stated, because Walsh got his dismissal, “albeit on a different basis” than the Act, so “any action by this [appellate] court would constitute an advisory opinion.”

Walsh then appealed the mootness ruling to the Illinois Supreme Court. The supreme court ruled the appeal was not moot because the Act gave Walsh rights that were not considered by the appellate court. This is how the supreme court explained it:

The instant appellate court’s failure to undertake the question of whether the plaintiff’s [Wright Development] lawsuit could be identified as a SLAPP directly contradicts the legislature’s explicit expression of public policy regarding the efficient process to identify and adjudicate SLAPPs … The mootness finding also contradicted the legislature’s express finding of public policy in favor of an award of attorney fees and costs to prevailing movants [who successfully defend a case under the Act].

Further, there was, in fact, a potential injury to Walsh. Walsh was denied the relief requested in his Act motion to identify Wright Development’s lawsuit as a SLAPP and for a statutory award of attorney fees and costs – an entitlement not available with the mere [Code of Civil Procedure]section 2-615 dismissal.

Ultimately the supreme court ruled Walsh had immunity from Wright’s defamation lawsuit under the Citizen Participation Act, and the case was sent back to the trial court for an award of Walsh’s attorney fees. Read the whole case, Wright Development Group v. Walsh, No, 109463 (10/21/10), by clicking here.

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February 24, 2011

No Jurisdiction To Consider Appeal Of Order Excluding Lawyer From Custody Evaluation

David and Rojean Molloy were battling for custody of their two children.
The trial court appointed the Cook County, Illinois public guardian to represent the children. A custody evaluation by a social worker was scheduled under the Marriage Dissolution Act. Rojean, who did not have a lawyer, asked the trial court to prohibit David’s lawyer from attending the social worker’s evaluation session with David. The trial court agreed and barred David’s lawyer from attending.

David thought he should not be deprived of an attorney at the evaluation, so he filed a notice of interlocutory appeal under Illinois Supreme Court Rule 307. David argued that the order prohibiting his lawyer from attending the evaluation amounted to a preliminary injunction, so the appellate court had jurisdiction to consider the appeal.

But the public guardian asked the appellate court to dismiss David’s appeal. The guardian argued there was no Rule 307 injunction because the order “merely set conditions for the petitioner’s [David] … evaluation.”

The First District Illinois Appellate Court agreed with the guardian and dismissed David’s appeal for lack of appellate jurisdiction. The court ruled that the order preventing David’s lawyer from attending the evaluation was ministerial, and therefore not an injunction that can be appealed before the end of the case. Here is the appellate court’s thinking:

“Not every nonfinal order of a court is appealable, even if it compels a party to do or not do a particular thing.” … Court orders that are ministerial or administrative cannot be the subject of an interlocutory appeal … An order is deemed ministerial or administrative if it regulates only procedural details of the litigation before the court … Such an order “do[es] not affect the relationship of the parties in their everyday activity apart from the litigation, and are therefore distinguishable from traditional forms of injunctive relief."

Here … we find the aim of the circuit [trial] court’s order to be ministerial; the order places a “condition” of the custody evaluation of the petitioner [David] as provided under section 604(b) of the [Marriage Dissolution] Act … [T]he order is not the equivalent of a preliminary injunction whose function is “to preserve the status quo resolution of the merits of the case."

Read the whole opinion, In re Marriage of Molloy, 1-10-1224 (2/10/11), by clicking here.

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February 18, 2011

Claimant’s Award In Shell Oil Gasoline Pipeline Class Action Case Reviewed For Abuse Of Discretion

Shell Oil Company’s pipeline leaked thousands of gallons of gasoline onto the Danhausen Farm in Kankakee County, Illinois. The lawsuit against Shell turned into a class action.

After Shell and the class reached a settlement, the trial court appointed a former judge as Settlement Administrator to recommend an allocation of the settlement funds among the class members.

The Administrator awarded the Danhausen Estate $120,489. But the Estate wanted more than $4.6 million. The Estate objected to the award, the trial court accepted the $120,489 recommendation, so the Estate appealed.

The first dispute was the proper standard of review of the order accepting the Administrator’s recommendation. The Estate argued that the order should be treated like an administrative review order, which would require a manifest-weight-of-the-evidence standard. The Third District Illinois Appellate Court disagreed. The appellate court saw a similarity between the order allocating settlement monies and an order approving a class action settlement, and thus chose an abuse-of-discretion standard. This is how the appellate court explained it:

… [T]his was a settlement of a class action, and a class action is a statutory creature .… A court order approving the distribution of funds in a class action settlement is an outgrowth of the final approval of the settlement agreement … Indeed, it appears that a distribution plan is often included in a settlement agreement and approved as a part of it … We conclude, therefore, that the appropriate standard of review in this case is the standard applied to appeals of court orders approving a class action settlement … In Illinois, decisions concerning final approval of class action settlements are reviewed for an abuse of discretion.

The appellate court ultimately affirmed the lower, recommended amount. Click here to get the whole opinion, Quick v. Shell Oil, 3-09-0987 (9/22/10).

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February 14, 2011

Subpoenaed Minor A “Party” Under Illinois Leave To Appeal Rule

Elizabeth Macknin got an emergency order of protection against her ex-husband, David Macknin. Elizabeth claimed David abused I.M., Elizabeth’s daughter from a previous marriage to Markrack. Elizabeth asserted that David intended to abuse E.M., their own biological daughter. David asked the trial court to strike the petition. In response, the court ordered Elizabeth to file an amended petition.

David served a subpoena for deposition on I.M. I.M. got her own lawyer, Komie, to represent I.M. in the order of protection case. Komie’s fees were paid by Markrack.

David then asked the trial court to disqualify Komie. David argued that Komie could not represent I.M., still a minor, because the Illinois Supreme Court Rules and the Illinois Dissolution of Marriage Act required I.M.’s lawyer to be appointed by the court, which Komie had not.

The trial court granted David’s request to disqualify Komie. Komie asked the appellate court for leave to appeal on behalf of Markrack, as next friend of I.M. David asked the appellate court to dismiss the appeal for lack of jurisdiction. The Second District Illinois Appellate Court allowed Markrack to appeal, and denied David’s request to dismiss.

In his brief to the appellate court, David again asked for dismissal. David argued that the Illinois Supreme Court Rules only allowed a “party” to request leave to appeal. Because I.M. was not a “party” to Elizabeth’s petition for a protective order, David asserted, she could not appeal the trial court’s ruling that disqualified Komie.

The court of appeals disagreed again, and ruled that it had jurisdiction to consider I.M.’s appeal. “Party,” under the Illinois Supreme Court Rules, was not limited to the petitioner (Elizabeth) or the respondent (David). This is how the appellate court explained it:

Respondent contends … that I.M. is not a "party" within the meaning of the rule and therefore we do not have jurisdiction. We cannot read the rule so restrictively. The rule does not designate that a "party" must be a plaintiff, defendant, or third party to the action in order to petition for leave to appeal. Rather, the rule simply provides that a "party" may petition for leave to appeal from an order granting a motion to disqualify "the attorney for any party." … I.M., as a protected person under an order of protection, is a "party" to that proceeding. I.M. is also a party to the motion to disqualify her attorney. Accordingly, we find that we have jurisdiction under [Illinois Supreme Court] Rule 306(a)(7).

In the end, the appellate court reversed Komie’s disqualification. Read the whole case, Macknin v. Macknin, No. 2-10-0221 (9/23/10), by clicking here.

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February 5, 2011

Rootin-Tootin Tootin

A couple of hundred years ago when I was a Big Law associate, a Big Law managing partner told me to “Toot your own horn, because nobody else will.” I thought of that the other day when I got a memo from the grand poobah of the Steven R Merican PC Unashamed-Toot-Your-Horn-Marketing Department. Although I’ve never seen him, so I can’t absolutely confirm this, I’ve been told the memo-writer over there wears particularly green eyeshades and is a resident of Chicago, although he lives elsewhere.

The memo directed all employees to toot whenever possible. “But,” I told Green Eyeshade, “tooting is not in my bones. I would rather talk about the law.” No matter, Green Eyeshade memo’d me. In a law firm the size of SRMPC, you must do your own tootin’. “So go toot.”

Well I’m a company guy, so here goes. ♪♪♪ The other day when the Chicago Tribune needed to understand the appellate process surrounding the Rahm Emanuel mayoral-candidacy lawsuit, the paper turned to the author of this fine appellate law blog for answers. You can read his nearly prescient observations here. And when KWQC HD television in Davenport, Iowa wanted to explain to its viewers what was going on in the appellate courts on the other side of the Mississippi, the station interviewed that same fellow. Demand for the interview is exceeding all expectations, and a digital version has unexpectedly become temporarily, Green Eyeshade hopes, unavailable. The station is searching the bowels of its archives for the interview. Illinois Appellate Lawyer Blog will post it upon receipt. (YouTube? YouTube? We don't need no stinkin …)

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