Pro Se Chicago's Weblog

January 25, 2012

Motion for Supervisory Order – Illinois Supreme Court

The reason to file a motion for a supervisory order with the Illinois Supreme Court (IL S Ct) is if a person is unable to file  direct appeal on the issue. For example in a divorce case where the judge endlessly keeps an issue “in reserve” for more than a year, and therefore, there is no final appealable order because all issues are not dealt with, then it is appropriate to file a motion for supervisory order to the IL S Ct in order to ask for an order to force the trial judge to make a decision on the case.

Also see info from the Illinois Pro Bono organization: here

The following is an example of a motion for supervisory order. The sample IL S Ct motion for supervisory order is here.

To file it, if the court is in session you send the original and 9 copies to the IL S Ct in Springfield at their office. If they are not in session and you are in Chicago, you file an original and five copies in the Chicago office of the IL S Ct and then send one copy to each of the four justices outside of Chicago – their local offices. Recently (2013) the IL S Ct made rules on how to E-file. See their web site for updated information.

Included must be notice of service to the judge (who is the respondent) and to the other parties, an order with a place for the judges to circle either “denied” or “granted” and a place to sign it., a verified statement that you are complying with the 20 page limit to the pleading, a cover for the appendix, an affidavit that the documents in the appendix are true and accurate copies, a table of contents with page numbers for the appendix, an affidavit if you are pro se (verified statement if you are an attorney) that you have served notice and the motion to the parties and judges, and a check for $25 dollars.  See IL S Ct rules 383,341-343.

The supporting record must be authenticated by the trial court clerk or verified by affidavit by attorney or  pro se counsel as required in IL S Ct rule

January 17, 2012

How to win a legal argument

    The “argument” either orally or in writing in a pleading such as a motion or petition is the manner in which a litigant can win or lose in court. This may seem simple but it is not. There is a lot of confusion and most people think that if a law says something, it must be followed. This is a delusion and is NOT how the law works in the United States.
    The court does not care about the truth or facts. It cares about who convinces them that their argument is correct or the best. It comes down to whoever shouted loud enough, did the best magic act, used the best smoke and mirrors, or denigrated the other side enough so that the judge didn’t listen to them wins.
    First understand that we are the UNITED States of America. There is a concept known as state’s rights.
    Federal law DOES NOT always trump state law. If you have a federal right that is CLEARLY delineated by federal law or the constitution such as the right in a CRIMINAL trial to have a jury decide your fate, then any state law depriving you of that right is unconstitutional and is trumped by your federal right.
    However, federal rights such as the constitutional Fifth and Fourteenth Amendment Due Process right does not always trump state law. For example, if there is a state law that says you have to stop at a stoplight, the federal due process constitutional right is NOT violated if someone doesn’t stop at the stoplight, hits you and the police fail to give them a ticket. There is no federal law that says a person has to stop at a stoplight and no federal law or right that says police must give someone who violates the law a ticket.
    Next remember that EVERY argument MUST be backed-up by case law that is on point supporting that argument. You should Shephardize your cases. That means look in the ” Shephard’s Citations” volumes and see if there is a more recent case that overturns or that supports the decision in the case you are looking up. This is how you verify the validity of the authority (case law) that you quote. If you don’t know how to use Shephard’s Citations ask a law librarian to teach you.
    If you state an argument but fail to develop it and back it up with case law, the court can THROW OUT that argument for “failure to develop it.”
    If you have an argument where there is NO case law available and this is the FIRST time it is being argued in any court, then this is an ” issue of first impression .” You still have to develop it or the court may throw it out for failure to develop it. You need to review the historical “common law” and then explain the “line of reasoning” including quoting any cases that have a similar line of reasoning although about a different issue. If you say: “I am right because the statute says this,” you will likely lose because you did not develop your argument.
    Laymen think that if a statute says an official “shall” do X, then that doing X is mandatory. You are wrong. The Illinois Supreme Court has ruled that sometimes the word “shall” is interpreted as a discretionary duty. This is what I call “perverted logic.” Then you have to explain, while quoting case law, why the word “shall” in the argument you use that claims that “shall” means the action is mandatory, really is mandatory. In other words you have to explain the issue of “statutory construction” or the line of reasoning from case law that explains when the word “shall” is mandatory and when it is discretionary. Then you have to explain citing case law on the line of argument from other cases that you are using why this line of argument applies to your case. “Statutory construction” is the issue of how you interpret a legal statute written by the legislature. This includes the issues of “legislative intent” which you can find by reading the “legislative record” (the verbatim copy of the arguments of the legislators when the bill was debated before passage). It also includes the issue of “clear language interpretation” where the courts have held in case law that if the language is clear then it should be interpreted clearly (which is open to interpretation as illustrated in above discussion of the word “shall”). This also includes the fact that if two statutes are conflicting and contradictory, then case law says that the statute that is more specific controls.
    Another difficult concept is the fact that criminal law and civil law have DIFFERENT procedures. Look at the Illinois code of civil procedure v. the Illinois Code of Criminal Procedure. Therefore case law concerning civil procedure may not translate into precedent for criminal procedure. The same applies for federal v state laws, codes and rules as well as appellate v. local trial rules and procedures.
    Stare decisis is the principle in law that previous appellate or supreme court decisions are controlling and must be followed, especially if they are long-standing.
    I am developing this article, so the above is introductory, but you get my point. See the code of civil procedure section on “pleadings” posted to the right under “pages” on this blog and read it carefully.

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