December 29, 2011

Schiess’s Seven Recommendations For Improved Writing

Bravo to Wayne Schiess for his candid and succinct seven suggestions for improving your writing. The title of the series, “Improving Your Writing Throughout Your Career,” speaks to one of the important themes every lawyer and writer should accept. Legal writing is a process, not an event, requiring continual refinement throughout your career.

A writer does not peak in the sense that an athlete might. Good writers know they can always get better, and that the improvement process is a career-long journey.

Wayne’s seventh suggestion is especially near to my heart ― accept critique. That’s a lesson I learned about a hundred years ago as a young associate at Big Firm. Today I run a service called AppellatologySM. We’re devoted to helping lawyers improve their appellate briefs. We do that by offering professional advice on how the persuasiveness and readability of your appellate brief can be improved. Our panel of senior lawyers, legal writing experts, retired judges, and scholars conference your brief online, so you can revise it before you file it. You can read more about AppellatologySM by clicking here.

And you can read Wayne Schiess’s seven suggestions at his most excellent blog,, by clicking here.

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December 27, 2011

Appellate Court Considers Alderman-Candidate’s Moot Appeal

Joe Rivera tried to run for an elected position as alderman in Chicago. But the Chicago Electoral Board upheld an objection to Rivera’s petition, preventing him from appearing on the election ballot.

Rivera then filed a petition in the trial court for review of the Board’s decision. Rather than serving the petition on the individual Board members or the Objectors, Rivera served their lawyers. The Objectors and the Board asked the trial court to dismiss Rivera’s petition because, they argued, the Illinois Election Code required Rivera to serve them personally, not through their attorneys.

The trial court agreed, and dismissed Rivera’s petition. Rivera appealed, but the election had passed by the time the appellate court considered the case. So the first question was whether the appeal was moot because it was impossible for the appellate court to reinstate Rivera to the election ballot.

The First District Illinois Appellate Court agreed that Rivera’s appeal was moot. But the court ruled it would consider the appeal anyway because it fell into the public-interest exception to the mootness rule. This is how the court explained its ruling.

… [A] reviewing court may address an otherwise moot issue pursuant to one of several exceptions: the public-interest exception, the capable-of-repetition exception, or the collateral-consequences exception … Regarding the public-interest exception, which is particularly applicable to election cases, mootness will be excused if there is a substantially public nature to the question involved, there is a need for an authoritative determination that will help guide our public officers, and there is a likelihood that the question will recur.
We find that the instant cause meets the public-interest exception to the mootness rules. Clearly, it involves questions of election law, "which inherently is a matter of public concern." … And, the issue is likely to recur in future municipal elections. The sections of the [Illinois Election] Code in question--particularly, section 10-10.1--involve the most basic tenets of the specific legal procedure that must be followed to obtain review from the Board: the time allowed in which to file a petition for judicial review and the steps required to effectuate service. Therefore, an authoritative determination on these issues is desirable to guide public officers. Accordingly, we decline to dismiss the instant appeal as moot.

Rivera ultimately lost the argument over service. He was required to serve the individual Board members and the Objectors, not their attorneys. Read the whole opinion, Rivera v. City of Chicago Electoral Board, 2011 IL App (1st) 11028), by clicking here.

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December 13, 2011

♪♪♪ Appellatology Grand Opening ♪♪♪

Guilty as charged. We’re obsessed with good writing and engrossed by lucid argument. Superior writing plus absorbing argument gives us the Ahhhhh of the first cup of morning coffee.

Appellatology is great legal thinkers and writers devoted to helping lawyers write better briefs.

How do we do it? Our panel of mock judges ― senior lawyers, scholars, retired judges, and legal writing experts ― analyzes your draft and confers with you and other mock judges, and tells you how to improve it. We answer your questions, discuss your issues, and give you our independent evaluations. And it’s all done online without the hassle, cost, and expense of leaving your office.

Why should you do it? Because most appeals are decided on the briefs, before you ever set foot in the courtroom. So your brief has to make your case. If your case is worth appealing, or defending on appeal, you should know whether your brief does the job it must ― before you file it.

Click here to learn more about Appellatology and how to improve your chances on appeal.

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December 7, 2011

Contempt Order Against Law Firm Reviewed De Novo

Hadley and David Newton were getting divorced. Grund, an attorney had met with David concerning the divorce, and took notes of the conversation with David. Nonetheless, Grund and Leavitt agreed to represent Hadley in the divorce case.

Grund and Leavitt asked the trial court for an award of Hadley’s attorney fees from David, about $250,000. But David asked the trial court to disqualify Grund and Leavitt from representing Hadley because of a conflict of interest from Grund’s representation of David. Before it ruled on the fee request, the trial court disqualified Grund and Leavitt.

A week later the trial court denied the fee request based on the conflict of interest. At the court hearing, the law firm refused to obey the disqualification order, so the trial court found Grund and Leavitt to be in direct contempt of court.

The law firm appealed the contempt order, and the parties fought over the proper standard of review. Grund and Leavitt argued for de novo review (no discretion to the trial court) because, they claimed, the correctness of the contempt order was purely a question of law. David argued for the more lenient abuse-of-discretion standard.

The First District Illinois Appellate Court sided with the law firm. Here is the court’s reason for choosing the abuse-of-discretion standard:

When the facts of a contempt finding are not in dispute, their legal effect may be a question of law, which we review de novo. … "As a general rule, a trial court's decision to award fees is a matter of discretion and will not be disturbed on appeal absent an abuse of discretion." … Here, however, the circuit court indicated its belief that it could not award attorney fees once Grund and Leavitt were disqualified. Meanwhile, Grund and Leavitt argue that, although they were disqualified, they are still entitled to their fees accrued for work performed for Hadley under section 508 of the [Marital Dissolution] Act before the disqualification and assert that nothing in the ethical rules explicitly states that no fees are allowed if an attorney is disqualified. The legal question is thus whether the circuit court properly denied attorney fees from the beginning of Grund's representation of Hadley. Whether a court or administrative agency has the authority to award attorney fees is a question of law that we review de novo. …" Furthermore, whether a party may recover attorney fees and costs pursuant to any specific act is a question of law." … Thus, since the facts of the contempt are not in dispute and since Grund and Leavitt are not appealing the disqualification, we are presented with a question of law and we review this issue de novo.

Grund and Leavitt won the battle over the standard of review, but lost the war. The appellate court affirmed the contempt order, in effect depriving the firm of attorney fees. Read the whole case, IRMO Newton, No. 1-09-0684 (6/30/11), by clicking here.

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