Equity Maxims

What is a Public
Administrator?

There Is No
Vindication In
Litigation

Usually, the invitation to write an article entitled "Practice Tips" is in reality a veiled opportunity for a judge to express his or her grievances concerning lawyers’ conduct in the courtroom. Such is not the case in this instance. This author has no gripes or peeves with the attorneys practicing in Court Room 2009 rather he is grateful for the courtesy, civility and general level of preparedness demonstrated on a day-to-day basis.

Probate and Chancery are both paper intensive practices and as such are the subject of a great amount of detail. Often, the omission of a punctuation mark or the addition or deletion of a certain fact in an affidavit can be the turning point in a case. The Probate statute and the case law in the Chancery/injunction practice are very detail specific so it is with that in mind that certain points are emphasized herein for the attention of practitioners.

Rule 10.01 concerns the settlement of the personal injury claim of a minor or ward. This rule is very specific as to what information must be conveyed to the judge in order to evaluate the sufficiency of a particular settlement. It is important for the judge to know the age of the child, the facts of the occurrence and the legal theory of the claim in order to determine the likelihood of recovery in the event of a trial. Any potential personal injury settlement must be considered in the light of a possible verdict before the settlement can be evaluated. Also, the court must know the name and limits of the insurance carrier in order to consider if a possible underinsured motorist or other first party claim exists. If there are fractures or scarring the petition must contain a current doctor’s report along with an estimate of future medical and hospital costs to revise scars.

Many times these petitions are brought by an attorney representing the insurance company not the family of the injured minor. It is important for the court to inform the parents of the inherent conflict in this relationship and to make sure that they still consent to the settlement. It is of great assistance to the court to have the opportunity to review these petitions in advance.

Rule 6.05 (e) provides that no motion and supporting document may exceed 10 pages in length. This rule also applies to briefs and documents submitted in response to motions.

It requires the motion and brief in support to be no greater in total than 10 pages. It does not apply to exhibits in support of the motion.

Rule 6.04 (d) concerns notice for motions. The rule allows for only two types of notice: mailing or hand delivery. We have no special rule for FAX notice so transmission by FAX has the same requirement of 5 court days as does notice by mail. The court cannot enter an order based on a notice of motion that does not comply with this rule unless the order is an agreed order.

Rule 6.08 covers Emergency Motions. This rule is somewhat detail intensive as it supercedes the requirements of Rule 6.04 so anyone desiring emergency relief should make sure that they have read and complied with Rule 6.08.

Rule 6.07 is a new rule governing the consolidation of cases and the proper way to show the captions of consolidated cases. The rule also sets out new provisions for consolidating cases from different divisions. Also, note that the fact that a motion to dismiss is pending on the case to be transferred could be grounds to deny the motion to consolidate.

Rule 6.05 (c) requires that courtesy copies of contested motions be delivered to the judge’s chambers 7 days prior to the hearing. Compliance with this rule is greatly appreciated but practitioners are advised that it is very difficult for a judge to absorb the nuances of a motion when the copies are dropped off thirty minutes prior to hearing. This practice usually results in a continuance of the hearing and often the imposition of fees to the innocent attorney who is required to make an additional court appearance.

Probate attorneys should be aware of the 8:15 AM call in 2009. This call is designed for the attorney who may be required to be in another courtroom or courthouse for a 9:00 AM call and wishes to open or close an estate. The clerk is in the courtroom. She will review the papers and if they appear to be in order will bring them back to the judge who will process them in chambers. Certified copies of orders can be requested. This process saves a great deal of time for all parties involved and attorneys are encouraged to take advantage of it.

Finally, Supreme Court Rule 201 (k) requires that attorneys hold a conference prior to presenting a motion involving a discovery dispute. The court will not entertain discovery motions, which do not affirmatively represent that such a conference has been held.

It is suggested that review of the above mentioned rules would facilitate practice in all of the civil courts of our circuit.

Many thanks to the editors and staff of the Bar Brief for the opportunity to express the foregoing opinions in this forum.