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.
Unsuccessful Candidate’s Reconsideration Request Under Wrong Statute Tolls Time To Appeal Defamation Dismissal
John Garrido lost an election to the Chicago City Council to John Arena. Garrido claimed he was defamed because Arena distributed campaign literature and advertisements that had “outright lies” about Garrido.
Garrido sued Arena, but the trial court dismissed the case based on the Illinois Citizen Participation Act. (The Act bars meritless lawsuits filed against citizens for their actions while exercising their First Amendment speech rights.) Within the next 30 days, Garrido asked the trial court to reconsider the dimissal. But Garrido’s request was brought under Illinois Code of Civil Procedure Section 2-1401, which is the section that applies to requests for reinstatement of cases dismissed more than 30 days before.
Garrido’s case had been dismissed for more than 30 days when he asked to amend his 2-1401 request to show it was intended to be brought under Section 2-1203, the correct statute, which does toll the time to appeal. The trial court allowed Garrido’s request to amend, but denied the request to reconsider the dismissal.
Mother Has Appellate Standing To Dispute Dismissal Of Acknowledged Father
The State of Illinois filed a petition claiming parents neglected their child, N.C., and asking to have the State bcome N.C.’s guardian. Alfred had acknowledged he was N.C.’s father. But a DNA test proved otherwise, so the State asked the trial court to dismiss Alfred, which it did.
The trial court also found that N.C. was neglected, and that the mother was unfit. The Illinois Department of Children and Family Services was appointed N.C.’s guardian.
The mother appealed the finding of neglect and the ruling that Alfred was not N.C.’s father. The state argued that the mother did not have standing in the appeal to dispute Alfred’s paternity.
Explain Yourself In Your Subhead
We are nothing if not current.
An article published in 2003 about effective subheadings, available here for the clicking, was referenced at the top of a “legal writing” Google search I just did. Authors Kara Thompson and Zach Brez for the Writing Center at the Georgetown University Law Center, did a fine job in this short piece explaining the importance of the “point heading.” (Except please don’t make subheads all caps; typical sentence style, boldfaced, is better.)
Don’t be lazy about drafting the subheadings. Sometimes they will be the most important part of your brief.
Railroad’s Time To Appeal Not Tolled By Post-Trial Request For Setoff
Railroad employee Anthony Williams was injured at work. He sued BNSF Railway, his employer, and got a judgment for $2.6 million.
Claiming there were more than 40 errors at the trial, BNSF asked the trial court to decrease or throw out the verdict. The company also asked for a setoff “in the amount of taxes payable as a result of lost wages awarded to Williams.”
The trial court denied BNSF’s request to throw out the verdict, but reserved a ruling on the “tax issue.” A written order order was not issued; nor did the court request one; nor apparently did the parties offer to submit one.
Ninth Circuit Appellate Practice Guide Posted
The Appellate Lawyer Representatives’ Ninth Circuit Practice Guide is available for the downloading from the Ninth Circuit’s web site. It’s a how-to for preparing and filing a brief in the federal appellate court out yonder in California. But it’s chock full of good tips no matter what jurisdiction you find yourself in.
You’ll want to look at the Top Technical Flaws In Briefs. Some of these are more than just technical. Don’t make one of these head-shaking mistakes.
Wrong Court, Late Filing, Bad Service Deprive Appellate Court Of Jurisdiction Over TRO Appeal
Nadeem Nizamuddin was expelled from school. He asked for and received a temporary restraining order against Community Education in Excellence, the operator of the private school, staying the expulsion at least until after a preliminary injunction hearing.
Excellence appealed the restraining order. But its appeal was dismissed for failure to comply with Illinois Supreme Court Rule 307(d), which states the requirements for establishing appellate jurisdiction over an appeal of a temporary restraining order.
Here is what the Second District Illinois Appellate Court said Excellence did wrong.
Illinois Supreme Court Refuses To Remand Willful-And-Wanton Assertion Against Ambulance Company
Karen Wilkins was making a left turn on a busy street in Oak Lawn, Illinois when she collided with an ambulance owned by Superior Ambulance Service. The ambulance was transporting a patient at the time, but did not have its siren or flashing lights on. Wilkins, injured in the accident, sued Superior. Her one-count complaint claimed Superior’s negligence caused the accident.
Superior asked the trial court for summary judgment because, Superior asserted, the Illinois Emergency Medical Services Systems Act gave the ambulance company immunity from being sued. The trial court agreed and gave Superior summary judgment.
Wilkins then appealed. The First District Illinois Appellate Court sided with Wilkins, and ruled that the Act did not give immunity when the ambulance was was being driven in an ordinary, non-emergency manner.
Appeal Of Class Certification Gets Abuse-Of-Discretion Review
Poolman of Wisconsin services and sells swimming pools, hot tubs, and fireplaces. Through a third-party, the company faxed an unsolicited advertisement to UESCO Industries, a company that manufactures cranes. Angered at Poolman‘s advertising method, UESCO sued Poolman under a federal law that prohibits unsolicited fax advertisements.UESCO asked for class action certification, claiming it could adequately represent all parties that received Poolman’s fax advertisement.
An Illinois trial court granted UESCO’s request for class action status. Poolman appealed.
UESCO and Poolman argued for opposite appellate standards of review. Poolman asserted the appellate court should review the matter de novo (no discretion given to the trial court) “because the issues presented on appeal are ‘purely legal.’” UESCO argued that the trial court should be reversed only if it abused its discretion. The First District Illinois Appellate Court sided with UESCO, and ruled that the trial court gets discretion with one condition.
Fax Filing Of Reconsideration Request Insufficient To Toll Time To Appeal
Myqerem Shatku sued Wal-Mart Stores for negligence. The trial court granted her motion to voluntarily dismiss the case in October 2010. A little more than a year later, Myqerem asked the trial court for permission to re-file her complaint.Wal-Mart responded by asking the court to dismiss Myqerem’s request. The trial court granted Wal-Mart’s request.
Myqerem asked the trial court to reconsider the order that dismissed her request to re-file the case. She served her motion to reconsider on Wal-Mart by fax. But her notice of service did not say anything about when she filed her request in court. The court’s records showed her written request was stamped received after the 30-day deadline.
Even though the request to reconsider was filed after the deadline, Wal-Mart opposed the request on the merits, and did not argue that Myqerem’s request was too late. The trial court denied Myqerem’s reconsideration request, and also did not address the untimeliness of her request.