Tuesday, July 20, 2010

A true courtroom story

I had a fire case once. I represented the owners of a building that burned down on one of the coldest nights in Chicago's recorded history. It was so cold that nearly all of the nearby hydrants were frozen solid. The Fire Department had a terrible time getting water on the fire. Because of this the fire communicated to several surrounding buildings.

Thankfully, no one was seriously hurt in the conflagration.

But that did not mean there were no lawsuits. There were many. There were, at one time, 16 separate cases arising from that one fire, all consolidated. The complete case caption was several pages long.

A non-lawyer will read a set-up like this and assume that this will be a story about the dramatic moment at the eventual trial where, by a combination of skill and daring, I elicited testimony from my opponent's expert that made the jurors gasp -- and won, in that moment, a verdict for my clients.

Non-lawyers watch too many lawyer shows on television.

Actually the case never went to trial. Eventually, it settled. I will admit (modestly, of course) that I had a few good moments in the course of this marathon litigation -- but this story is not about any of these either.

Rather, it is about the last of the several judges to whom this litigation was assigned.

With all these consolidated cases, we were in court on this case a lot. Sometimes we were in court a couple of times a month. There were occasions when we were in court far more often than that.

In our state court, we have a modified master calendar system. While there are today several individual calendars, where a case may be handled from filing through verdict, most of our larger (Law Division) cases are assigned to one of five motion judges who handle preliminary matters until the case is determined to be ready for trial.

Most cases never get to trial.

When I started, a generation ago, there were only two Law Division motion calls and no individual calendars. Now there are five motion calls and several individual calendar calls to which any Law Division case might be randomly assigned and many more individual calendar calls to which contract cases are assigned.

But my story goes back aways, as most of the best stories do. There were already five motion judges and I don't think there were yet any individual calls.

That means each judge saw 20% of the cases filed in the Law Division.

And I had a lot more cases than this one complicated fire case -- it's just that, for reasons of pure chance, none of them were on Judge Willard's motion call (I'm making up names again). Judge Willard had taken over for Judge Thomas, who'd been promoted to the Chancery Division. Judge Thomas had taken over for Judge Joseph after Judge Joseph was elected to the Appellate Court. There may have been others too, but you get the idea.

Now in the insurance defense practice that I had in those days, I might have auto cases or product cases or premises liability (fall-down cases). I might have contract cases (we represented insurance companies in first party matters, too; these would be suits claiming the insurer had failed to pay a covered claim). But, for the longest time, I was never before Judge Willard in any of these cases.

I was only in front of him in this one fire case. Frequently. Regularly. Judge Willard got to know who I was in terms of this case.

Too well, as it happens.

The wheel spun and the seasons changed and the giant fire case settled. Little by little, I had new cases assigned to Judge Willard's calendar. I'd bring my motions attacking the pleadings.

I was really good at that, back in the day. Illinois is a fact pleading state (as opposed to the federal courts, where only notice pleading is required). The difference between fact and notice pleading is that, in fact pleading, a plaintiff must set out legally sufficient facts supporting every element necessary to prove his claim. That's actually pretty easy to do, if you've thought the case through, and you know the facts. But sometimes the opposing lawyer hadn't. And sometimes the lawyer didn't want to get very specific. Sometimes it would be in the best interests of the plaintiff's lawyer to be a little vague -- because anything you plead you promise to prove: The allegations of a complaint will potentially be a jury instruction. And, obviously, the plaintiff wants to recover as much as possible by pleading as little as he can. Just as obviously, the defendant wants the plaintiff to be hamstrung by pleading all sorts of stuff he can't prove. The judge decides what's necessary.

Thus, my motions.

And I came before Judge Willard with an easy motion in an auto case.


I was shaken. I'd always done well with Judge Willard. In my gigantic fire case, I always felt if I'd received a respectful hearing. I didn't always win -- who does? -- but I more than held my own. But here I felt as if I'd been swatted away -- virtually ignored.

Next came a premises case. This was an easy one, I thought, because it was clear that the plaintiff had tried to skip over all sorts of necessary facts. I had won similar motions in other courtrooms dozens of times. When the case was called, I walked up to the bench with confidence. I opened up my mouth to speak --


Things went from bad to worse. In the course of the next few months it seems that every new file I got was assigned to Judge Willard. I kept filing motions and I kept losing. Construction case? Denied. Contract case? Denied. More auto cases, more premises cases -- denied, denied, denied. False imprisonment? Denied. Intentional infliction of emotional distress? Denied.

After the court rules, the lawyer writes up the order and presents it to the clerk for the court's review and signature. Assuming that the judge finds nothing amiss, the clerk will stamp the copies and give them back. Usually, it's the prevailing party that writes up the order -- but I always volunteered to write the order, win or lose. That's a whole other story in itself.

Suffice to say, I was waiting one day for the clerk to stamp proof of my latest defeat. The courtroom was empty. My case had been one of the last on the morning call. My opponent had approved the wording of the order and had taken off. The judge had left the bench.

Judge Willard's clerk was a nice, matronly lady. She was relatively new in that room, though I'd seen her in other courtrooms over the years. In fact, she'd arrived in Judge Willard's courtroom right around the time my terrible losing streak began. As she handed back the copies that morning, she had a deeply concerned look on her face. "I don't know how to ask this," the clerk began, "and I don't mean to give offense. But... Mr. Curmudgeon... do you ever win any of these motions?"

I had no answer to that question. I'd begun to ask it myself.

But I was saved finally by a case involving -- have you guessed yet? -- a fire. It seems that a fire originated in the wall behind a stove at a community organization I was representing. That fire had allegedly communicated to an adjacent building, causing property damage.

The case had been assigned to Judge Willard and I approached the bench on this occasion with some trepidation. The clerk leaned forward from her desk adjacent to the bench, offering silent support or maybe even encouragement.

I began to speak.

Judge Willard, as was his habit, was leaning forward on the bench, resting his head in one of his hands. When I said the word "fire," though, he suddenly sat upright.

"Fire?" he asked.

There was further colloquy -- but that was the decisive moment. Motion granted.

Thereafter, every case became a fire case in Judge Willard's courtroom. Nobody fell down without a cigarette burning in their mouth; there were flames or at least sparks of some sort in any product case. In any auto case, somebody was driving a Firebird. Or at least something that arguably looked like one.

I still didn't win every motion -- again, who does? -- but I started winning my share again... once I learned that I'd become a specialist.


Dave said...

I knew there'd be a new post up since you just visited my place. You're getting to predictable, like the good judge.

Jean-Luc Picard said...

I good story here, Curmy.

Empress Bee (of the High Sea) said...

seriously? wow. do you think he has a, wait. never mind. he's a judge, right? above that stuff. ? .

smiles, bee