Paralyzed by that white screen mocking you? Close your eyes for a few minutes and let this piano massage your brain. Then write your appellate brief like Earl Fatha Hines moseys along the Santa Fe Trail.
“Hey, c’mon Sr. illinoisappellatelawyerblog.com. Two months between postings? How do you expect to keep your readers? We’re writing briefs. We need all this stuff you write about. Nobody else does it, at least not like you. What’s your excuse now?”
“No excuses, none that are worth talking about anyway. Stick with me, my friend. I’ll do better.”
Suffering from writer’s block? Low energy day?
Shake up your axons and dendrites. This video is better than caffeine.
Write your appellate briefs like Dona Oxford boogies.
Mutual Management Services took an assignment of debts Richard and Kimberly Swalve allegedly owed to three medical providers. Mutual sued the Swalves for the money. But the Swalves asked the court to dismiss because, they asserted, facts existed that undercut Mutual’s complaint as a matter of law. The trial court agreed, and dismissed because Mutual did not give proper notice of the assignments.
Mutual appealed. There are two appellate lessons in this case.
(1) The Swalves asked for dismissal because the facts showed Mutual did not give proper notice of the assignment of debt. But when they got to the appellate court, the Swalves argued their factual motion should be characterized as asking for dismissal as a matter of law, irrespective of facts outside the complaint. The Second District Illinois Appellate Court disagreed, and ruled it would consider the Swalves’ request on the same basis as the trial court. Here is the appellate court’s reasoning:
… [A]s an initial note, the Swalves insist that their section 2–619 motion to dismiss [considering facts not in the complaint] “should have been characterized” as being brought under section 2–615 [which looks only at whether the complaint states a legal cause of action] of the Code. While appellate review of decisions regarding motions to dismiss brought under both sections is de novo … the analysis applied to each is different … Section 2–615 attacks the legal sufficiency of the complaint by alleging defects on the face of the complaint; section 2–619 assumes that a cause of action has been stated but asserts that the claim is defeated by other affirmative matter … These motions differ “significantly.” … We will not consider the application of a Code section that was not raised or argued before the court below and that requires a different analysis.
(2) The appellate court also ruled on a forfeiture question. MMS argued that the dismissal should be reversed because the Swalves did not have the required affidavits to support their request. But the appellate court refused to consider the argument because Mutual had not asserted it in the trial court. This is the way the appellate court viewed it:
According to MMS, since “it is clear that the face of the Amended Complaint did not provide the grounds upon which the Defendants’ Motion was based,” affidavits were mandatory; in the absence of any affidavits, the Swalves “failed to meet their burden on the motion.” However, MMS did not object to the absence of affidavits in the trial court, and thus it forfeited the issue on appeal.
The dismissal of Mutual’s complaint was affirmed. But the appellate court ruled that Mutual could try again after giving the Swalves proper notice of the assignment. The whole case, Mutual Management Services v. Swalve, 2011 IL App (2d) 10077, is available right here.
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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 …)
Yesterday’s New York Times ran an article questioning the enormous loans many students need to get through law school, and how law schools game the school ratings. That’s news? Here is a letter to the editor I wrote today, suggesting a radical fix:
To the Editor:
“Is Law School a Losing Game?” begs the question: what do we do about the foolish amount of debt students must absorb to get through law school? The answer is: change the structure of law school and the requirements one must meet to practice law.
Law schools are ignoring the demands of lawyers’ clients ― lower the cost of your service. Most law firms have been busy trying to do that. Lawyers are struggling to deal with their labor costs, mostly because lawyers who just got their licenses have to figure out how to pay off student loans and law firms have to pay the new lawyers a sufficient amount to do so.
A dean of a Chicago law school recently told an alumni group that graduating students at that law school have an average $100,000 in school loans. That’s a lot less than the students you featured in your article, but still way too much for a novice who doesn’t add much value to the service lawyers give their clients. And clients have the final say.
Right now law firms are squeezed on both ends of the financial equation. Clients are unwilling to pay for new lawyers to learn how to practice law, and new lawyers require and demand more than law firms are willing to pay. The result is lots of new lawyers unable to meet the obligations of their school loans. Many are unemployable at the salaries they need to service student debt.
There is a way to fix the problem, but it will take courageous action by law schools, accrediting organizations, bar associations, law firms, and new lawyers. First we admit that for most lawyers grinding out three years of law school, supposedly to learn how to think like a lawyer (read: indoctrination), does no one any good. Students graduate still not knowing how to practice law; law firm-employers are frustrated by having to absorb more and more of new lawyers’ salaries; and clients are angry about paying what amounts to training costs and student debt for new lawyers.
Law school for students who want to practice law should be one calendar year. During that year, curriculum should focus on legal research and communication, and a fundamental core of study ― contract law, torts, property law, criminal law, procedure. Students can be given an option for an elective or two.
A mandatory apprenticeship at a law firm should follow graduation. That’s where new lawyers will learn how to practice anyway, not sitting in a classroom discussing cases that were decided decades ago in an obscure jurisdiction. Law firms should be allowed to pay their apprentices as much or as little as they want ― whatever the market will bear.
That approach will take the pressure off of students who have no way to get through three years of law school without mortgage-sized student loans, and they’ll get a more useful education. It will take a lot of pressure off of law firms that are absorbing a big chunk of new lawyer salaries into overhead. And it will go a long way toward relieving law firm clients of the financial burden of carrying new law firm lawyers.
Law schools especially won’t like this idea. They have institutionalized the three-year curriculum. Their income now depends on keeping students in classroom seats for three years. But law firm clients are changing their counsel-hiring models, and law firms are changing their business models to accommodate clients. It’s time for law schools to get the message, and share some of the financial pain the rest of the market has endured, and make some difficult changes, too.
An honest man? Nah, that’d take too long.
But I am looking for a great strategist and brief writer who wants to write criminal law appeals.
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