Motion Practice Missteps:
Judicial Perspectives About
What NOT To Do
Judge Lynn M. Egan
Judge John P. Callahan, Jr.
Judge Moira S. Johnson
June 20, 2014
MUST READ MATERIAL:
 “Losing Successfully on the Motion Call: Practice
Hints” by Judge Willard J. Lassers.
 Bradshaw v. Unity Marine Corporation, Inc., 2001
WL 739951 (S.D. Tex).
KNOW ALL SOURCES:
Motion judges are charged with applying & enforcing a
variety of statutes, rules & orders so attorneys need to
know those sources:
 Illinois Code of Civil Procedure
 Illinois Supreme Court Rules
 Local Circuit Court Rules
 Local Circuit Court General Orders
 Law Division General Administrative Orders
All can be found at www.cookcountycourt.org
KNOW YOUR COURT:
The organization of the Court will determine the proper
forum for your motions.
 Familiarize yourself with the Court’s organizational
structure.
 Learn the different “Divisions” of each “Department” &
know that the Law Division is but 1 of 8 Divisions within
the “County Department.”
 Learn the 7 different “Sections” within the Law Division.
 Know the difference between Motion Calls (22nd floor),
Individual Calendars (General & Commercial) & Jury
Rooms.
KNOW YOUR AUDIENCE:
 Each Individual Calendar judge & most motion judges
have their own Standing Order. They also use the
“Motion Judges’ Rules.”
 These documents are the roadmap to effective advocacy
before each judge.
 KNOW THEM & ADHERE TO THEM!
Standing Orders & Motion Judges’ Rules are posted online
at www.cookcountycourt.org under “Judges’ Information.”
WHAT IF YOU’RE IN THE WRONG
PLACE?
Don’t worry – cite General Order 1.3(b):
“No action shall be dismissed & no judgment…shall be
vacated…because the action was filed, tried or
adjudicated in the wrong department, division or
district.”
BUT…
Get the case transferred to the proper place ASAP.
(General Order 1.3(c))
WHAT IF YOU WANT TO BE
SOMEWHERE ELSE?
 Consolidation
 735 ILCS 5/2-1006 – The Why
As an “aid to convenience whenever it can be done
without prejudice to a substantial right.” Examples:
cases similar in nature, arise from same acts, same
issues or indivisible injury.
 General Order 12.1 – The How
The Law Division Assignment Judge (Room 2005).
Includes actions pending in different Departments of the
Court, Divisions of the County Department & the Law
Division.
WHAT IF YOU WANT TO BE
SOMEWHERE ELSE?
 Related Cases
 General Order 22.1 – The Why
“In order to conserve judicial resources & promote
efficiency…whenever it serves the convenience of interested
parties & the court.”
 General Order 22.2 – The What
Cases have at least 1 party in common, the same property,
same issues of fact or law, same transaction or occurrence.
 General Order 22.3 – The How
Law Division Assignment Judge (Room 2005)
WHO SAYS YOU CAN PICK YOUR
OWN JUDGE?!
 General Administrative Order 91-4:
“Cases on the Jury & Non-Jury Trial Assignment Calls
when deemed ready shall be assigned to a trial
judge by random electronic process except as
provided in paragraph 1.4, hereafter.”
THE ORDER CONTAINS A SINGLE
EXCEPTION
 General Administrative Order 91-4, ¶ 1.4(a):
“The Presiding Judge may enter assignment orders without
reference to the electronic random assignment system in
cases which require intensive judicial supervision &
management such as…
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Mass tort
Commercial airplane crash
Explosion
Multiparty or other unusual situations which necessitate extensive
pretrial activity or extended trial time.
NOTE: “This exception shall be exercised on a very limited basis as the
interests of justice may require.”
APPEARANCES
 PLEASE file an appearance before addressing the
Court – it is required! (Supreme Court Rule 13(c)(1)
& Circuit Court Rule 1.4(a)).
 “Special & limited appearances” ended in Jan. 2000.
 “Limited
scope” appearances became effective
under S.Ct.Rule 13 on July 1, 2013.
EXTENSIONS OF TIME
 Applicable Rule & Statute – Both require “good cause.”
 Supreme Court Rule 183
 735 ILCS 5/2-1007
 What if you don’t have “good cause”? JUST SAY SO!!
DO NOT:
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Say something that isn’t accurate
Blame your opponent
Blame the judge
ASSERTING PRIVILEGE
 Don’t even bother arguing your claim of privilege if
you haven’t generated a privilege log.
 It is required under Supreme Court Rule 201(n) &
must include:
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Description of the documents & dates generated*
Things not disclosed
Exact privilege being invoked
If attorney-client privilege is invoked, be prepared to
produce affidavit(s) establishing the factual
foundation for it.
PHYSICIAN DEPOSITIONS
 The rule that addresses non-party M.D. depositions
is Supreme Court Rule 204(c).
 If no agreement, the requirements are issuance of a
court order & payment of a “reasonable fee.”
 If contesting the fee, provide the judge with
information about the doctor’s training, experience,
board certification & hospital affiliations.
RULES TO SHOW CAUSE
 Non-parties, not parties.
 Service pursuant to Supreme Court Rule 105:
 Summons
 Certified or registered mail, return receipt requested
 Publication (Need affidavit & court authorization)
 If person fails to respond, next step is a body
attachment, which can only issue if there has been
personal service. Supreme Court Rule 204(d).
 If a body attachment issues, include specific identifying
information and an “I” bond amount.
DISPOSITIVE MOTIONS
 Know the appropriate procedural vehicle for your
desired relief – AND CITE IT!! (Judges don’t like to
guess.)
 Know the limitations of the procedural vehicle you
rely upon – AND DON’T EXCEED THEM!
NOTICE YOUR MOTIONS FOR
HEARING ASAP
 Circuit Court Rule 2.3: Any motion - 90 days after
filing or Court may deny “by reason of delay.”
 Circuit Court Rule 2.1(f): Summary judgment motions
must be presented for hearing at least 45 days
before trial date – “unless a deadline…is otherwise
specified in the case management order.
CAUTION: Beware deadlines in the Standing Orders!!
NUNC PRO TUNC ORDERS
 Nunc pro tunc is not a talisman against legal
malpractice.
 It is only appropriate to correct clerical errors or
matters of form so that the order reflects what
actually occurred.
 It cannot be used to:

Supply omitted judicial action
 Correct judicial errors
 Correct jurisdictional defects
PETITIONS TO APPROVE
SETTLEMENT
 Follow the written procedures established by the
Presiding Judges of the Law Division, Probate
Division & First Municipal.
PLEASE !!!
 Failure to do so will result in delay or denial of your
petition, thereby delaying payment of the settlement.
PETITIONS TO APPROVE SETTLEMENT
 Attorney fees – Cook County Local Rules 6.4(b) & 6.5(d)
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for minors, disabled persons & decedents.
“Fair & reasonable” or “necessary” -- Don’t ask for this
language in regard to attorney fees or expenses. It is not
required & doesn’t matter what the judge thinks. You get
what you are entitled to under the client contract & Local
Rules 6.4 & 6.5.
“Detailed itemization” – Required for all expenses & don’t
even bother asking for charges that amount to overhead.
Probate expenses -- “Not recoverable in the Law
Division.”
Degrees of dependency -- MUST be agreed by all heirs,
not just the Administrator. If not, there must be a hearing.
TRIAL MOTIONS
 Don’t try to disguise dispositive motions (summary
judgment or section 2-619) as motions in limine.
 Don’t bring oral motions in limine. (“This practice is
unsupported by the case law & increases the chance of
error.” Davis v. City of Chicago, 2014 IL App (1st)).
 Memorialize all rulings in limine in a written order that
specifies the excluded evidence. Do not simply draft
orders that state, “granted” or “denied.”
 Get the written orders signed by the Judge before
opening statements.
NOTE: Don’t forget to make simultaneous objections
during trial.
JUDGE JOHN J. CALLAHAN, JR.
Motion Call “C”
Room 2203
MOTION CALL PET PEEVES
 Long, rambling statement of facts at the beginning of a
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SJ motion, followed by an argument section that fails
to cite to the record.
Orders that merely refer to “defendant” or “plaintiff”
when there are multiple defendants or plaintiffs.
Forum non conveniens motions that fail to discuss the
actual facts. FNC means FACTS NOT CASES.
Lawyers who do not use the electronic citation format,
which has been in use for nearly 3 years.
Citations to the NE Reporter or Ill.Dec., rather than
the new electronic format.
MOTION CALL PET PEEVES
 Courtesy letters that fail to identify what is being
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submitted or when the matter is set for hearing.
Motions that do not include a copy of the complaint.
Reply briefs that simply cut & paste sections from opening
brief. When you repeat, the Court is done reading.
Deposition transcripts where the witness’ employer & job
title are buried in the transcript. Provide this information
to the Court in a summary of your exhibits.
Emotionally charged language. Do not use adjectives &
adverbs. Leave them at home for the dog to chew on.
MOTION CALL PET PEEVES
 Sloppily written orders. Take the time to make your
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orders neat & legible.
Sniping at opposing counsel during case management
or oral argument.
Attorneys who know nothing about the case, but were
sent to “cover” the CMC. Off to the jury room & the
end of the call.
Discovery responses that refer to an entire medical
chart, but to no specific page.
Boilerplate discovery objections that do not explain
why a request is unduly burdensome, overly broad or
vague.
MOTION CALL PET PEEVES
 Objections to discovery because a word has not been
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defined, but the “objectionable” word is written in plain
English.
Paragraphs longer than ½ page.
Attempts by a settling plaintiff’s attorney to recover costs
that are part of overhead, such as postage, parking, mileage
& cab fare. When you nickel & dime your client, you
cheapen yourself in the eyes of the Court.
Affidavits based on what the affiant “believed” or
“understood.” Subjective beliefs are not facts.
Briefs without page numbers centered at the bottom of the
page.
JUDGE MOIRA S. JOHNSON
Motion Call “F”
Room 2201