April 23, 2011

Father Forfeits Appeal Of Negligence Dismissal For Failure To Reallege It In Amended Complaint

While warming up his son for a baseball game, Thomas Vilardo threw batting practice from behind a pitching screen provided by the Barrington Community School District. Vilardo’s son hit a pitch that Vilardo claimed went through a hole in the screen and hit him in the eye, causing injury.

Vilardo sued, claiming the School District was guilty of negligence and of willful and wanton conduct. The School District asked the trial court to dismiss Vilardo’s claims. The trial court dismissed Vilardo’s negligence claim because the School District was statutorily immune from a plain negligence claim.

The trial court dismissed the negligence count with prejudice (can’t re-plead it), and dismissed the willful and wanton claim without prejudice (can re-plead it). Vilardo filed an amended complaint that alleged only willful and wanton conduct against the School District. The amended complaint did not re-allege or refer to the plain negligence claim that had been dismissed.

After some discovery, the trial court ruled that the School District did not have actual or constructive knowledge of a defect in the screen. So the School District could not be guilty of willful and wanton conduct, and its request for summary judgment was granted.

Vilardo appealed from the dismissal of the negligence claim and the summary judgment on the willful and wanton action. But the School District argued that Vilardo forfeited his right to appeal the dismissal of the plain negligence claim because he did not re-plead it in the amended complaint. Vilardo argued that he was not permitted to because the trial court dismissed it with prejudice.

The Second District Illinois Appellate Court agreed with the School District. The appellate court ruled that Vilardo had forfeited an appeal of the order dismissing the negligence action because he did not re-plead it or refer to it in the amended complaint. Here is the appellate court’s thinking.

[A] party wishing to preserve a challenge to an order dismissing with prejudice fewer than all of the counts in his complaint has several options … First, the plaintiff may stand on the dismissed counts and argue the matter at the appellate level … Second, the plaintiff may file an amended complaint realleging, incorporating by reference, or referring to the claims set forth in the prior complaint … Third, a party may perfect an appeal from the order dismissing fewer than all of the counts of his or her complaint prior to filing an amended pleading that does not include reference to the dismissed counts … Plaintiff [Vilardo] pursued none of these options, and thus has forfeited review of the negligence count in this appeal.
The appellate court also agreed that Vilardo’s willful and wanton claim had no merit. So Vilardo lost the appeal because he forfeited the appeal of his negligence dismissal and the there was no evidence to sustain his willful and wanton action.

Read the whole opinion, Vilardo v. Barrington Community School District 220, No. 2-10-0045 (12/20/10), by clicking here.

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April 19, 2011

Fewer Oral Arguments Heightens Importance Of Appellate Brief

Here is a letter to the editor I submitted to Illinois State Bar Journal with my observations about an article in the April 2011 edition that disapproves of the declining number of appellate oral arguments.

To the Editor:

“Surviving the Death of Oral Argument” (sorry, subscription required) is misnamed. The article doesn’t contain ideas for how lawyers should proceed in their appellate practice in view of an established trend by courts to dispense with oral argument. Instead, the article bemoans the reality of fewer oral arguments, and criticizes the trend because, the author states, without a public oral argument judges may not be fully engaged.

We like to and should hold our judges to high standards. But at bottom, judges are paid public servants, elected to office by the same system we use to elect all politicians to other public offices. Taxpayers compensate judges to decide cases, conduct trials, and settle disputes. An unengaged appellate judge, irrespective of whether there is oral argument, shortchanges the public, especially the parties to a given dispute.

The appellate process should include oral argument when a judge wants the insights of counsel beyond what is contained in the briefs. But we shouldn’t have to entice judges to prepare for the decision-making process by conducting expensive proceedings that do not affect the outcome of the case.

Someone has to pay for “the public nature” of oral argument. When the government argues, taxpayers foot the bill. When a privately engaged lawyer argues, a client pays. Even in an uncomplicated case, those costs easily are thousands of dollars. Taxpayers and clients legitimately should question those expenses, especially when judges tell you that 85 to 95 percent of appeals are decided before a lawyer ever steps into the courtroom for oral argument, and irrespective of what the lawyer says. Tempting judges to become engaged — i.e., to do their jobs — does not justify the added costs to taxpayers and litigants to use our dispute resolution system.

So how does the appellate practitioner survive the death or oral argument? Write more readable and persuasive briefs. (Full disclosure here: My firm runs a service called AppellatologySM, an internet-based appellate brief conferencing service designed to help appellate lawyers write better briefs.) How you do that is a lengthy subject for another day. But goal number one has to be: Make sure your brief addresses all of the factual and legal questions a judge wants to know in order to rule in your favor. With fewer oral arguments, your brief may be your last and best hope.

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April 16, 2011

Trial Court’s Late Order Extending Time For Posttrial Motion Deprives Appellate Jurisdiction

David Wilson was in custody on a warrant for two felonies. A police detective shot Wilson while he was in an interview room at the Chicago police headquarters. Wilson sued the city and the detective. After trial, a jury ruled in favor of the city and the detective.

Within 30 days of the judgment, under section 2-1202 of the Illinois civil procedure code, Wilson asked for and received and extension of time to file a posttrial motion. Before the new deadline arrived, Wilson asked for another extension. The trial court allowed a second extension, but did not rule until after the first extension deadline passed. Wilson asked for another extension, which the trial court allowed. Then Wilson made his request for a new trial, but the court denied it. So Wilson appealed.

But the First District Illinois Appellate Court dismissed the appeal because, the court said, it did not have jurisdiction. The trial court lost the power to give the second extension when the first extended deadline passed. So the second extension, coming just a day after the first extension lapsed, was null and void, as were the third extension and Wilson’s notice of appeal. This is how the appellate court explained it:

“… [A]fter the 30-day period has expired, or the extended period of time has expired, without the entry of a new order setting a new deadline, the trial court loses jurisdiction of the case.” … And, once the trial court loses jurisdiction, any subsequent orders entered, including a notice of appeal which would vest jurisdiction with our [appellate] court, are not viable.

The lesson is that requesting an extension of time to make a posttrial motion within the 30-days after the judgment, or within a court-ordered deadline, will not alone be sufficient. For trial court jurisdiction to continue, the court also must order a new deadline before the prior deadline expires. Otherwise the time to file a notice of appeal, and thus invoke the jurisdiction of the appellate court, runs from the expiration of last legitimate extension.

Read the whole case, Manning v. City of Chicago, No. 1-09-1561 (2/25/11), by clicking here.

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April 8, 2011

Good Reads: Point Made Foresakes The Lecture To Show Good Writing

Most good-writing books suffer from a sleep-inducing sameness. Often smug and condescending, they tell you what to do and what not to do ― be concise; avoid verbosity, especially the dreaded legalese; use active verbs; don’t write passive sentences, unless of course you’re smart enough to know when to break the rule; use strong lead sentences to start paragraphs; use strong summary sentences to end paragraphs; and so on.

Author Ross Guberman breaks the die. His entertaining and informative Point Made: How to Write Like the Nation’s Top Advocates takes a smart approach to writing persuasive legal briefs. Rather than lecturing the reader about what to do, Point Made shows you how the headline lawyers do it.

Guberman breaks down the brief into basic elements — theme, facts, argument — and describes how to deliver them. He then shows skillful writing techniques with examples from briefs written by all-star lawyers.

It’s an effective way to present writing technique. You see exactly how a particular method has been used to write a persuasive brief. And in case you don’t get it, like a good teacher Guberman is there to help you understand.

Point Made is exceptionally good at showing technique for writing the facts of a case. Guberman calls this chapter “The Tale.” Sections on setting the stage and on letting choice details speak for themselves are most effective. Most everyone can learn from the contrast between James Stewart’s two versions of Ivan Boesky’s ostentatious restaurant order. The difference between telling and showing is startling and enlightening. It makes for a yeah-I-see-that-now moment.

Point Made is worthwhile reading. It’s full of ideas a legal writer can use to write a persuasive and readable brief. More than a typical how-to, it’s a this-is-how-effective-lawyers-do-it book. Keep it nearby for the times you’re having trouble expressing on the page what you need to say to make your case. You’ll appreciate it, and so will your client and the court.

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April 2, 2011

Illinois Supreme Court Dismisses And Remands Medical Malpractice Appeal Taken Under Voided Statute

Donald Cookson sued Todd Price, a physical therapy assistant, and the Institute for Physical Medicine, Price’s employer, for medical malpractice. As required by an Illinois statute, Cookson filed an affidavit and a report by a physician swearing to Price’s malpractice. But Price claimed the affidavit did not comply with the statute because it was signed by a physician specializing in physical medicine, not a physical therapy assistant. So Price asked the trial court to dismiss the complaint.

Cookson first opposed Price’s dismissal request. But then deferring to Price’s argument, Cookson asked the trial court to allow him to file a new affidavit, this time signed by a physical therapy assistant. Price opposed the new affidavit because, he argued, it was offered more than 90 days after the complaint was filed, a violation of the Illinois statute.

The trial court agreed with Price and dismissed the lawsuit. But the appellate court reversed, ruling that the trial court had power to allow Cookson to file an amended complaint with a new affidavit, even more than 90 days after the case had been filed.

The Illinois Supreme Court took Price’s appeal. While the case was pending, the supreme court ruled that the statute containing the 90-day restriction was unconstitutional. The ruling of unconstitutionality had nothing to do with 90-day requirement.

When an amended statute is declared unconstitutional, “The effect … is to revert to the statute as it existed before the amendment.” In this case, because the pertinent statute had been voided as unconstitutional, the Illinois Supreme Court ruled that “the reasons upon which this court relied in granting leave to appeal no longer exist.” So the supreme court “decline[d] to address the merits of the substantive issue raised … and dismiss[ed] this appeal.”

The supreme court sent the case back to the trial court to “determine whether plaintiff’s [Cookson] pleadings meet the current requirements of [the statute].” Read the whole case, Cookson v. Price, No. 109321 (12/23/10), by clicking here.

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