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Cogan’s Corner – A Lawyer’s Guide to Aspirational Rules

Originally published in the August 11, 2014 edition of the Chicago Daily Law Bulletin.

An article about how Micheal Paul Cogan explains the different rules that are applied when dealing with the Code of Civil Procedure.

A lawyer’s guide to aspirational rules

Have you ever had the experience of doing something regularly in your practice that seems so common, so universally accepted, that you assumed there was an explicit rule dictating your actions?

Then one day, your opponent challenges this fixed belief and as you’re imperiously rifling through the Code of Civil Procedure, then Supreme Court rules, your confidence crumbles as you can’t find that pesky rule anywhere.

This happened to me recently, and it occurred to me that there are a couple of areas where our rules of civil procedure are lacking and the Illinois Supreme Court Rules Committee or legislature might want to take notice.

For instance, if you serve a subpoena duces tecum on a third party, do you notice your opponent of service of the subpoena? Yes, right?

Do you know what rule or code provision requires you to do so? Answer: none.

This is just one of those de facto rules that carries the weight of common sense combined with years of practice.

Illinois Supreme Court Rule 204 titled “Compelling Appearance of Deponent” addresses subpoenas, but when it comes to notice to parties specifically provided for under Section (a)(3), it is silent on who is entitled to notice of subpoenas to third parties.

Rule 204(a)(4) gets us a little closer to a notice requirement. It requires a copy of any subpoena issued in connection with a deposition that allows the production of documents in lieu of the deponent’s appearance to be attached to the notice and immediately filed with the court, not less than 14 days prior to the scheduled deposition.

In the case, all parties of record would get notice of that filing. Nevertheless, this rule is not directly on point.

Next up, Rule 206 “Method of Taking Depositions on Oral Examination,” –it already seems a bit off the mark. It provides in Section (a): “A party desiring to take the depositions of any person upon oral examination shall serve notice in writing a reasonable time in advance on the other parties.”

This is the proper notice requirement regarding discovery on third parties, but there is nothing in the language of the rule that addresses a subpoena duces tecum for documents alone. Notwithstanding the title of this rule, under the Committee Comments to Paragraph (a), it is states: “’Subpoena’, of course, includes a subpoena duces tecum.”

Turning to the Code of Civil Procedure, there is a provision titled “Subpoenas” under the “Trial” section, 735 ILCS 5/2-1101. While it specifically addresses the subpoena duces tecum, it does not address any notice requirements.

The court in In re Marriage of Riemann, 217 Ill. App. 3d 270 (5th Dist. 1991), recognized these discrepancies and held that while Section 2-1101 does not specifically provide for notice of service of subpoenas to be furnished, under Rule 206(a), the subpoenaing party would have been required to notify all counsel of any deposition. However, there was nothing in the record that the party notified the petitioner, whose financial records were being sought, of service of the subpoenas.

My research reveals that there is no rule or code provision that directly addresses in its text the commonly used subpoena duces tecum, including any notice requirements. In taking a fresh look at the discovery rules, the misleading labeling and the cobbling of the rules necessary to glean a straight answer, it appears it is time for an update.

Here’s another teaser. When you move for reconsideration of a court order, what section of the code do you cite as your basis? Do you treat reconsideration as tantamount to a motion to vacate?

There are three code sections implicated in this scenario: 735 ILCS 2-1203 “Motions After Judgement in Non-jury Cases,” 735 ILCS 5/2-1301 “Judgments—Default—Confession” and 735 ILCS 5/2-1401 “Relief from Final Judgments.”

Clearly, it depends upon what type of order you are seeking to have reconsidered or vacated, i.e., an interlocutory order like partial summary judgment, default judgment or a final judgment. A review of the case law illustrates a fair amount of confusion here as well.

The epicenter of uncertainty lies between Sections 1203 and 1301. Despite its misleading title, 1203 generally serves as a basis for a motion to reconsider allowing the court to modify or vacate judgments upon motions within 30 days. It places a more arduous burden on the movant to alert the court to newly discovered evidence, changes in the law or errors in the court’s application of previously existing law.

However, attorneys will often cite 1301(e) even in cases not involving default judgment seeking vacatur that amounts to reconsideration of the court’s order: “The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” This is a less rigorous burden than that required by 1203.

Once outside of the 30-day window, litigants often seek to invoke Section 1401 to take another swing at convincing the court of their position. Section 1401 in its truest form is a motion to vacate final orders and judgments after 30 days. It carries with it stringent requirements that the party establish elements such as a meritorious defense or claim and various forms of diligence in pursuing the defense or claim both before and after judgment.

Nevertheless, litigants often mislabel their motions, seek improper relief and invoke the wrong section of the code to support their position.

In determining whether a motion is to be treated as a motion to reconsider or a motion movant’s request according to its substantive content and not merely the label affixed to it. See In re Haley D., 2011 IL 110886, 67.

Illinois precedent permits a court to consider procedural posture when determining the proper character of a movant’s request. However, from my vantage point, if the courts have to relabel our motions, perhaps a review of the rules is in order and reconsideration should get its own billing. Just a thought.

Cogan’s Corner August 11, 2014 from CoganandPower

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