Have you ever stood in front of the bench on the third floor and wondered, "How am I doing?" Perhaps you have seen the judge leaning across the bench, eyebrows raised, with an unmistakable expression of "Are you done yet?" I am sure that we have all seen judges droned into unconsciousness by what we thought was captivating testimony. More likely than not, the judge’s stoic expression revealed nothing.
Well, this article will let the practitioners on the Third Floor know how they are doing or what they should be doing differently. In an effort to improve the practice on the Third Floor, the Domestic Relations Division judges have spoken. The author interviewed each of the judges, who graciously gave their praise, critiques, and tips for practicing before them.
The best place to start is at the beginning and the beginning of any cause of action is the pleading. Be it a Petition for Dissolution of Marriage, Petition for Legal Separation or some other pleading, it is what frames the issues before the court and establishes the relief requested. The computer age has assisted us in producing uniform pleadings. Upon initial questioning, the judges were satisfied with our pleadings. But, before we sprain our arms patting ourselves on the back, improvement is needed. Consistently, most judges noted that our pleading problems arise at prove up. Quite often, we have only alleged one ground for dissolution. All of the judges strongly recommend alleging grounds in the alternative as permitted under the Illinois Code of Civil Procedure.1
If the case is resolved by agreement, we often orally move to amend the pleadings to add the grounds of irreconcilable differences. We then take additional court time to execute stipulations and waivers of the two-year separation period. Greater problems arise at default prove-ups. For example, if you only allege irreconcilable differences, be prepared to prove up under those grounds only. As a general rule, most of the judges will not allow you to amend your pleadings to add other grounds for dissolution without notice to the "defaulted" party.2 As with any rule, there are exceptions. Judge Bongiorno will allow you to orally move to amend the petition after the opposing party has been defaulted. He believes that once defaulted, the defaulted party has no statutory right to notice of additional proceedings which would include motions to amend. However, be aware of Illinois Supreme Court Rule 105 which requires that if new or additional relief is sought against a party not entitled to notice under Rule 104, notice shall be given him as provided herein. Become familiar with Illinois Supreme Court Rule 105 for when notice would be required and how that notice is to be given.
The judges do not feel that we abuse the use of motions to strike as a whole. Motions to strike will not delay a hearing on the ultimate issue. If you do not prevail on the motion to strike, be prepared to answer the pleading and proceed to hearing. You should have your witnesses ready to go to hearing immediately after an adverse ruling.
Finally, remember that the judges know nothing about the controversy. Your pleadings are absolutely critical to setting the tone at a hearing or trial. Depending on the facts alleged, your witness’ testimony may be vulnerable to relevancy or materiality objections. Judge McKillip has identified the "dos" and "don’ts" of drafting. Do identify the statute(s) which control the issue. Do use the statute as an outline for the necessary allegations and the standards to be applied. Do keep your allegations simple and to the point. Do allege facts. Don’t tell a story. Don’t be vague. Following these simple rules will make your pleading more effective by giving you the admissions you want at trial and preventing delays. If you fail to follow these simple rules, you risk leaving your pleading vulnerable to motions to strike.
Simply put: Do not do it. The judges do not like them. Whether we like it or not, we are bound by the rules of the Illinois Code of Civil Procedure.3 Oral motions only serve to massacre due process: the opposing litigant is given no notice; the issue is not clearly framed; and no specific remedy is sought. Ultimately, the integrity of the justice system is diminished.
Does this all sound melodramatic? Of course. The practical side of this argument is that the judges’ court calls are brimming with properly filed pleadings. A space on the court’s status call, or even the 20-minute hearing call, will not accommodate oral motions. While most judges have entertained oral motions in an effort to help solve the problem du jour, they regret it. As we begin a volley of words, the judges watch dozens of litigants wait expectantly for their turn.
Unanimously, the judges agreed that our delay does not an emergency make and stress that they are looking to do substantial justice. They always assess the "emergency" nature of the motion on a case-by-case basis. Judge Austin may have hit the nail on the head in saying that "unless it is something you could proceed on without any notice at all," he is not going to proceed on it. Judge French looks to see if the parties could not have known that the "emergency" situation was going to occur; if it could be anticipated, it is not an emergency. Judge Equi looks to see if no one is prejudiced by the inadequate notice.
All judges look for compliance with Local Court Rule 6.08(a)4 requiring an affidavit attached to the pleading. The affidavit should state the reason the requested relief is necessary on an emergency basis and what attempts have been made to notify opposing counsel of the request for emergency relief. But the judges are looking to the non-moving party to make the objection regarding the emergency nature of the petition.
What constitutes an affidavit varies according to the judges. Most judges allow documents titled "affidavit" to certify the information in the pleading with language similar to that in a verification; there is no need to retype the allegations contained in the petition. Judges McKillip and Austin want to see factual allegations in the affidavit. The rule of thumb is to make the allegations for the relief requested in the petition as if it were a non-emergency petition and make allegations of the emergency nature of the motion in the affidavit.
Local Rule 6.08(a) specifies that "failure to attach said affidavit(s) to the request for emergency relief shall be sufficient grounds for denial of same."5 Take note that Judge Bongiorno is a stickler for applying the local court rule if the opposing party objects to the motion being deemed an emergency due to the lack of an affidavit. If everyone is present, the issue is of some importance and he is able to deal with it, Judge Equi will encourage the parties to "get it done" when the motion is presented.
None of the judges have ever conducted a temporary custody hearing and all are unlikely to do so in the future. Conducting two custody hearings, a temporary and final one, is not judicially economical. They will conduct hearings on temporary possession and visitation in order to determine the best interests of the child during the pendency of the litigation. Judge Equi does not even prefer temporary possession hearings. All urge an agreement as the parents should be better able to recognize what is in the best interests of their children.
We all know that there is no such thing as guideline visitation. However, there seems to be a push by the attorneys to equalize time each parent has with the children. Few judges are inclined to split parenting time equally between the parties. All of the judges are looking to maintain the status quo so as not to disrupt the children’s lives as much as possible. The facts that are most important to present are: age of the children; children’s schedule demands; the living arrangements of the parties; geographical circumstances of the parties and children; and historical parenting schedule. All of the judges are looking to give the greatest amount of time for the children to bond with each parent.
Judges Sheen, French, and McKillip may divide exclusive parenting time (not equal time) evenly when the parties reside together. Judge Sheen has gone so far as to leave the children in the house and have the parties move out on an alternating basis rather than inconvenience the children. If the situation warrants equalizing the children’s time between the parents, Judge French is looking at 14-day blocks of time rather than the time in a week. Judge Bongiorno begins visitation recommen-dations with alternating weekends and is looking for factual circumstances to deviate from that recommendation.
As with a lot of things, more is not better. More documents, more time, more witnesses do not result in more money. All of the judges stressed that this is a temporary order. We are not setting a precedent of paying too much or getting to little.
As a rule, give the judges the Comprehensive Financial Statements (without the supporting documentation), three pay stubs, and a complete tax return only if the party is self-employed or the income fluctuates. They do not need bank statements, canceled checks, check registers, or bills at a temporary hearing unless you are introducing them for a purpose. In that case, limit what you enter to the disputed document; do not submit every statement for the last three years. For example, if someone says he cannot afford to pay maintenance but spends $400 per month on his girlfriend, show relevant check register pages.
Can you say the word "stipulate?" Stipulate to all of these documents coming into evidence and limit witness testimony to challenging the figures in the Comprehensive Financial Statement. If you are really good, have the stipulation in writing. This way you can get your hearing completed within 20 minutes on the 20-minute call.
Judge French recommends using FinPlan reports in your closing argument to tie everything together. Remember to use the exhibits entered into evidence in your closing arguments to highlight the lines and figures most important to the support calculation. These tips will make the decision easier for the judges and will boost the credibility of your argument tremendously.
Judges Sheen, Bongiorno, and Austin do not prefer to see tax returns. Give them the three most current pay stubs. They are simply attempting to fashion an immediate remedy to keep the parties intact.
Lastly, the judges take all Com-prehensive Financial Statements with a grain of salt. They realize that some of the expenses are exaggerated or duplicated. If the parties are no longer living together, the income between the parties will always fall short. In looking to the parties’ basic needs, the judges are looking to sustain the parties during the pendency of the litigation.
Judge Anderson aptly stated that the "level of stress in the [criminal] felony division, where people are in jeopardy of a death sentence, is lower than the level of stress present in divorce cases." Such stress level is not sufficient for a grant of exclusive possession. The judges look at petitions for exclusive possession as a means for a party to gain a strategic advantage in a case. Know that they are looking for exceptional circumstances to give such an award. All divorces are stressful and therefore, the stress of living together due to the divorce is not enough of a reason for exclusive possession.
Custom and practice have been for the attorneys to agree on a mediator or evaluator. Judge Bongiorno believes that this practice enhances the credibility of the process. Judges Equi and Austin would prefer random selection to equalize the workload among all mediators/evaluators and remove any advantage due to the individual idiosyncracies between mediators/evaluators.
Be that as it may, the judges recognize that the process itself has some shortcomings. In many cases, reports are not quick in coming for a variety of reasons from scheduling of appointments to overuse of a particular mediator/evaluator. There may be no communication from the mediator/evaluator before status dates. The judges have begun to address these timing issues to ensure the integrity of the process. Watch your cases to see if some of these issues are resolved as a matter of the judge’s control of the process.
Also, pay closer attention to the local court rules regarding contact with the evaluator. Local Court Rule 15.18(II)(H)(2) provides that "[a]ttorneys for the parties shall not contact the evaluator either during or after the evaluation, without leave of Court, except concerning those matters in the Referral form or in regard to scheduling." That means your cover letters to the evaluators should not go into your client’s position for custody and visitation. The documents sent to the evaluator should be those listed in the Joint Evaluation Referral Form.
More and more often, attorneys are trying to take advantage of the process by submitting inappropriate documents or arguments to the evaluator. If the contact is overly egregious, you can move to have the evaluator disqualified because of opposing counsel’s actions. Judge Austin has suggested moving for sanctions against opposing counsel. If we, as practitioners, feel that this problem is more pervasive, we can propose changes to the process to Judge Equi such as form cover letters to the evaluators or requiring courtesy copies of the cover letters to go to the judges.
Consistently, all of the judges want us to understand that the evaluator’s opinion is not determinative of custody and visitation. The evaluator is the court’s opinion witness whose testimony is given the same scrutiny as any other witness. If the evidence in your case can support a result different from that in the evaluation report, the judges stand ready to make an independent determination.
Do judges read the courtesy copies? The answer is a qualified "Yes." They read them if the copies reach them in time. None of the judges would refuse to hear a motion because the movant did not provide courtesy copies seven days before the hearing pursuant to Local Court Rule 6.05(c)6. All would be happy in receiving them the day before. Unfortunately, we are not even meeting that deadline.
Remember, due to the tragic events on September 11, 2001, mail coming into the courthouse is thoroughly screened. After it is processed, the mail is delivered to the schedulers once in the morning and once in the afternoon. Something placed with the scheduler one afternoon may not make it to the judges until the following afternoon. Mailing it seven days in advance might not be enough. If you want to make sure a late courtesy copy makes it to the judges, deliver it to them in their courtroom.
While Judge Equi will acknowledge that the level of preparedness has improved, pretrial memoranda are posing the biggest difficulty for the judges. Logically, you know that you will not be receiving the most comprehensive pretrial recommendation from the judge if you deliver your memorandum at the start of the pretrial conference. The judges not only read them, but many will prepare FinPlan reports in advance of the conference. While most want them at least a day before the conference, Judge Austin would prefer them 2-3 days before.
All of the judges are disappointed with the format and content of the pretrial memoranda. Judge McKillip has proposed formulating a cover sheet that provides minimal information such as statistical information regarding the parties, marriage and children, educational background, current income, agreements and disputed issues. Without hesitation, the judges concur on a need for a list of agreed and disputed issues. Give them the facts and leave out the narrative. Attach FinPlan reports that support your recommendations.
All the judges complained that trials quite often take too long and that the lawyers do not appear to be prepared for them. Judges French and McKillip are trying to force preparedness through the new Order Setting Pre-Decree Case for Trial. It requires compliance with Local Court Rule 15.08(f), which provides that, "each party shall prepare a Trial Memorandum to present to the trial judge at time of trial. The Trial Memorandum shall contain a statement of contested issues, uncontested issues, list of income, assets and liabilities, stipulations on agreed matters and probable length of trial. Each party shall submit a list of numbered exhibits with copies of all exhibits having been exchanged among all attorneys at least three (3) days prior to trial."7 This order also specifies the date and time for the attorneys to exchange the information. Surprisingly enough, Judges French and McKillip have noted a marked improvement in the quality of the trials before them. Judge Equi has suggested that if this pilot program is successful, he may expand its use to all courtrooms in the division.
Even though we may resist implementation of this order, Judge French assures me that there are many benefits to it. It makes trial go more efficiently: no additional time is needed to mark, exchange and view exhibits. It is easier to bar witnesses or evidence due to non-disclosure. There are fewer disputes as to exhibits because everyone has a complete copy.
With regards to opening statements, most judges like them. If done effectively, opening statements can successfully frame the issues and the relief requested. Just keep them brief. Judge Austin does not feel the need for them unless it is a complicated or custody case.
The rules of evidence do apply in the Family Law Division. The judges notice when we try to avoid them or do not object when opposing counsel fails to follow them. We are not laying our foundations. Judge French did acknowledge that trial practice before her has improved dramatically since she began using the trial orders. She believes that we are forced to look at our evidence much sooner, thereby anticipating foundation issues sooner.
Objections seem to be another weakness in our practice. The judges have different terms for our objections: e.g. speaking objection, narrative objection or the IDLTWTIG objection. The last is Judge McKillip’s acronym: I Don’t Like The Way This Is Going. To some extent he believes that we use this type of objection to distract the trier of fact or the opponent. Just say, "Objection," and follow it with the legal basis. The proponent of the testimony should respond. Then the judge rules. Objection over.
Not sure of an appropriate legal basis? Pick one from this list: irrelevant, immaterial, hearsay, foundation, best evidence rule, the witness is incompetent, calls for privileged communication, calls for a conclusion, calls for a narrative, compound question, leading, asked and answered, beyond the scope (of direct, cross, redirect), confusing/misleading/ambiguous/vague/unintelligible, argumentative, calls for speculation, improper characterization, misstates evidence/misquotes the witness, improper impeachment. These can be very powerful objections.
Quite often, trials could be substantially abbreviated if we only took the time to meet with our opponents to stipulate to joint exhibits and evidence. The time spent in such meetings could be less than the time spent at trial with witnesses and foundations. There is no need to call both parties’ real estate appraisers if you stipulate to the admission of the two appraisals. Better yet, a written stipulation can simply list the parties’ valuations of property from the appraisals. Judge French feels we could eliminate a tremendous amount of documentary evidence with comprehensive stipulations. Use them to identify assets and values on specific dates. Not making a timely objection is not the same as a stipulation.
Surprisingly enough, the judges prefer written closing arguments for a couple of reasons. In written closings, we tend to use the evidence better than in oral closings. The judges can use them to frame their findings of fact and conclusions of law and also to frame a judgment. They are looking to our closings to lay out the law, providing copies of cases where appropriate, and apply the evidence to the case. If you have handled your evidence appropriately during closing, the judge should be able to go to the exact point in their notes or to the page of an exhibit to find the facts you are citing.
Where would we be without a mention of civility? It is an abstract concept. We can recognize incivility when we see it. Unfortunately, the judges see it more on the Third Floor than any other floor of the courthouse. It may be that we are expressing our clients’ frustration. Whatever the reason, the judges have made some definite suggestions to improve civility in their courtrooms.
First, do not yell at the judge, either at the bench or in chambers. You would think this goes without saying. Attorneys in their frustration or excitement seem to forget. Next, be on time. We are all busy. If you need to be in another courtroom, let the clerk know where to find you. Third, be prepared. While we shared a laugh at Judge McKillip’s comments on preparedness at the last DuPage County Bar Association Family Law Committee meeting, lack of preparedness is not funny. Come to court with a cheat sheet of information such as the parties’ names, children’s information, if there are disputed custody issues and where you are in the pleading/discovery process. Fourth, no name calling. The judges hate it. Neither parties nor attorneys should be maligned.
The final suggestion is how to proceed on motions/petitions. The proponent of the motion goes first and says his piece without comment or interruption from the opponent. The opponent than says his piece without comment or interruption from the proponent. Third, the proponent gets the final word replying to the opponent’s response. Next, the judge rules. Finally, remember to say "Thank You" to the judge after the ruling. It’s only polite.
I spent only an hour with each judge. In that brief time, we covered a lot of topics. The ones covered in the article were the ones considered most important by the judges. Overall, they think we are doing a great job, considering the emotional nature of the business. But like in any endeavor, there is always room for improvement.
1. 735 ILCS 5/2-613(b) (2000).
2. Illinois Supreme Court Rule 105 requires additional notice if new or additional relief is sought. The judges differ on their opinions as to whether a new ground is new or additional relief.
3. 735 ILCS 2/101 (2000) et seq.
4. 18th Judicial Circuit Court Rule 6.08(a).
5. 18th Judicial Circuit Court Rule 6.08(a).
6. 18th Judicial Circuit Court Rule 6.05(c).
7. 18th Judicial Circuit Court Rule 15.08(f).
Louise B. Bauer is an associate with the firm of John L. Fay & Associate, P.C., specializing in the area of family law. She also practices in the areas of real estate and appeals. Ms. Bauer received her B.A. from the University of Chicago in 1989 and her J.D. from Loyola University Chicago in 1994. She wants to give special thanks to the judges of the Family Law Division for being open to the concept for the article and generous with their time.