Tuesday, July 31, 2018

Ooops. Cook County efiling system experiencing "challenges" this afternoon

What were they before?

Anyway, apparently the system has crashed entirely now.

Anyone in Cook County with a "hard" (jurisdictional) deadline today may wish to become familiar with Supreme Court Rules 9(d) and 10(d) forthwith.

Challenges... such an innocent-sounding word....

Saturday, July 28, 2018

August 16 fundraiser for Daniel Patrick Fitzgerald

Supporters of Daniel Patrick Fitzgerald's 13th Subcircuit judicial bid are holding a fundraiser for their candidate on Thursday, August 16, from 6:00 to 8:00 p.m., at Mac's on Slade, 117 W. Slade, Palatine. Tickets for the event are $40 each ("Precinct Captains" admitted for $25). Tunes, libations, and appetizers are included. Sponsorships are available (Jazz - $250, Blues - $500, Rock - $1,000).

Live music will continue late into the night at Mac's, even after the fundraiser concludes.

For more information about the event, or to reserve tickets, email Abbey Corbett at abbey@corstrategies.com or call (708) 209-6076. Tickets may also be obtained from this web page.

Fitzgerald is the Republican nominee for the Lawrence vacancy in the far northwest suburban 13th Subcircuit.

ABA seeks nominations for annual Web 100

You're obviously a connoisseur of fine legal blogging, or you wouldn't be here. Unless you got here by accident. Or you're a Russian hacker or provocateur. (You know, I don't like where this is heading....)

Anyway, the American Bar Association is once again soliciting nominations for what its Web 100 award. This used to be called the "Blawg 100," but the ABA broadened the title a few years back so it could include legal podcasts and law-based Twitter feeds and, this year, "all online legal forums—including apps, subscription services and other digital tools."

The ABA's explanation of what it wants to include in this year's Web 100 can be found at this link. No, I don't know what the ABA means by apps, subscription services or other digital tools. If you do, however, you can nominate one by filling out this form. You can even nominate a more traditional blog (*hint, hint*) The deadline for submissions is August 7 at 11:59 p.m.

To be on the safe side, don't start uploading your submission at 11:58 p.m. on the 7th. See, Peraino v. County of Winnebago, 2018 IL App (2d) 170368. (In comedy writing, this is called a "callback.")

The Web 100 winners will be published in the December issue of the ABA Journal. A complete list of legal blogs can be found at the ABA Blawg Directory. The ABA Blawg Hall of Fame can be found here. For What It's Worth may be found in only one of these....

Friday, July 27, 2018

Illinois must reject efiling 'rejections'

Here in Cook County we are adrift this month on Odyssey's wine-dark sea. Those of us who have braved the new efiling system have experienced wildly divergent results. I had one filing take three attempts over six days, another done in one shot -- but it still took 55 hours -- and another that was turned around in just under 30 minutes.

That's some wild divergence. And, from Facebook and the ISBA online discussion groups, I know my experiences are not unique.

But -- assuming progress is being made in this department -- cutting down on the extreme turnaround times will not alone be sufficient to make efiling useful, or even palatable, to the bench and bar.

We must decisively reject any notion that efiling gives our Clerks of Court new powers to "reject" efilings.

The Illinois Clerk of Courts Act, 705 ILCS 105/0.01 et seq., specifies, in great detail, the duties and responsibilities of court clerks and the fees they may charge.

And it is clear that the General Assembly has made the Circuit Clerks into more than mere warehousemen. In addition to receiving and keeping records -- the core historic function of a Clerk of the Circuit Court -- the legislature has made the clerks responsible for the creation of various sorts of records, specifying, down to the bindings, what records to create and how these must be kept.

Nowhere in the Clerk of Courts Act, however, does the legislature make a clerk into a curator of everyday court records: They do not have the power to decide for themselves what to keep and what to reject.

And efiling changes nothing in this regard.

The creation of the court record is the responsibility of judges and lawyers (and unrepresented parties). The court clerk merely keeps that record, and stores it, making it available for further use by the trial court or for appellate review.

It is true that the most recent amendment to Illinois Supreme Court Rule 131 does refer to the power of a clerk to "reject" a document submitted for filing.

As of January 1, 2018, Supreme Court Rule 131 was renamed "Form of Documents" (from "Form of Papers"). The rule now provides:
(a) Legibility. All documents for filing and service shall be legibly written, typewritten, printed, or otherwise prepared. The clerk may reject any documents which do not conform to this rule.

(b) Titles. All documents shall be entitled in the court and cause, and the plaintiff’s name shall be placed first.

(c) Multiple Parties. In cases in which there are two or more plaintiffs or two or more defendants, it is sufficient in entitling documents, except a summons, to name the first-named plaintiff and the first-named defendant with the usual indication of other parties, provided there be added the official number of the cause.

(d) Name, Address, Telephone Number, and E-mail Address.
(1) Attorneys. All documents filed or served in any cause by an attorney upon another party shall bear the attorney’s name, business address, e-mail address, and telephone number. The attorney must designate a primary e-mail address and may designate no more than two secondary e-mail addresses.

(2) Unrepresented Parties. All documents filed or served in any cause by an unrepresented party upon another party shall bear the unrepresented party’s mailing address and telephone number. Additionally, an unrepresented party may designate a single e-mail address to which service may be directed under Rule 11. If an unrepresented party does not designate an e-mail address, then service upon and by that party must be made by a method specified in Rule 11 other than e-mail transmission.
According to the Supreme Court Rules, a circuit clerk may only "reject" a document which is illegible or otherwise fails to comply with the few specific requirements of Supreme Court Rule 131. And the clerk doesn't even have to do that; he or she "may" reject a non-conforming document.

Note, too, that attorneys are required to provide their name, address, telephone number and an email address on every document. No local attorney ID number is required. Therefore, no clerk has the power to reject a document because a local attorney ID number is omitted.

Yet, this was one of the bases on which the petitioner's notice of appeal was "rejected" by the Clerk of the Circuit Court of DuPage County in In re Marriage of Bordyn, 2018 IL App (2d) 180017-U (discussed more in this post).

The other asserted basis for "rejection" in Bordyn was that the notice of appeal and notice of filing of the notice of appeal were submitted as one document -- an "error" that Presiding Justice Donald C. Hudson noted, 2018 IL App (2d) 180017-U, ¶14, would probably have been rectified, in those carefree, innocent days prior to efiling, simply by pulling out the staple from the offending document and re-stapling it as two documents.

The Bordyn court agreed that the otherwise timely-filed notice of appeal was properly rejected because, under paragraph 3 of the Illinois Supreme Court's Electronic Filing Standards and Principles (as amended September 16, 2014), "Any electronic document or record submitted to the clerk of the court for filing shall be deemed filed if not rejected by the clerk." And paragraph 9(d), also relied upon, provides that, "Bulk filings of multiple cases or multiple documents combined into one PDF document... shall not be accepted." (2018 IL App (2d) 180017-U, ¶7.)

Standard 9(d) was incompletely quoted in Bordyn. The word "bulk" was omitted. Moreover, standard 9(d) further provided, "Documents with different civil or criminal case numbers must be filed individually in separate transactions." Well, of course! In the days before efiling, no attorney would hand over an undifferentiated mass of papers for the unrelated Smith, Jones, White, and Green cases and tell the counter clerk to figure it out for him- or herself. Nor would an attorney glob together her appearance, answer, and initial discovery requests all as one document. But all the attorney did in Bordyn was attempt to file his notice of appeal and proof of service of that notice as a single document.

Further, these 2014 "standards" generally refer to the voluntary efiling regime that the Illinois Supreme Court was then trying to encourage. These standards were referred to in the introductory paragraphs of the January 22, 2016 Order adopting a timetable for mandatory efiling across the state, but they were not adopted as rules. Rather, paragraph 9 of that Order provided, "The Supreme Court will adopt rules governing e-filing and e-service in accordance with the mandate schedule in this Order." Nor were these 2014 standards adopted as rules in the May 30, 2017 amendment to the mandatory efiling Order."

And, besides, nothing in these standards creates or confers any power on a clerk to reject a document; it merely states the obvious: that which is not rejected is accepted.

The Bordyn court also refers (2018 IL App (2) 180017-U, ¶7) paragraphs 7(d) and (f) of the Supreme Court's Electronic Filing Procedures and User Manual. But, of course, this is the manual for filing documents in the Supreme Court, not in DuPage County.

But let's look at the cited sections inasmuch as these may serve as templates for rules that may be adopted elsewhere. Section 7(d) provides, "An e-filed document submitted to the Clerk for filing shall be deemed filed upon review and acceptance by the Clerk. The filed document shall be endorsed with the clerk's electronic file mark setting forth, at a minimum, the identification of the Court, the Clerk, the date and the time of filing."

That provision gives no specific power to the Clerk of the Supreme Court; the objective evaluation that the Supreme Court Clerk may properly perform for, say, briefs submitted for filing in that court (e.g.left margins of 1.5", font sizes, brief cover colors, word counts) are already specified elsewhere in the Illinois Supreme Court Rules. Rather, the paragraph merely describes what consequences follow for a document that fails to conform to these objective filing requirements that the court -- not the clerk -- has set forth.

Paragraph 7(f) provides, "In the event the Clerk rejects a submitted document, the document will not be filed and the registered user will receive an electronic notification of the reason(s) for the rejection."

This provision gives no power to the Supreme Court Clerk to reject documents for any reason it wants; rather, it requires the Clerk, in the event she feels compelled to reject a document, to specify the reason -- and it is assumed, or should be, that the reason specified will be one specifically authorized by Supreme Court rule.

Now, I understand that one should not read too much into a Rule 23 Order like Bordyn. It will never be cited by any reviewing court addressing an efiling issue.

But it will have been read. As long as the case pops up in Lexis or Westlaw, at least until a body of published case law emerges, every trial or appellate court judge faced with an efiling issue, and all of their law clerks, will look at Bordyn.

And if one appellate panel was not inclined to critically examine the limitations placed on the circuit clerk's powers to "reject" documents submitted for efiling, others may be as well -- unless the bench and bar get together on this and make abundantly clear that efiling creates no new powers for circuit clerks. Circuit Clerks have limited powers to reject any proposed filings; specifically, they have only those powers granted by statute and by the Supreme Court Rules. We must reject efiling rejections.

Saturday, July 21, 2018

An efiling nightmare -- but with a happy ending

I left you yesterday with a tease for a "doozy" of an efiling story.

This particular nightmare scenario came to me courtesy of long-time colleague Orlando Velazquez, an experienced bankruptcy practitioner, who recently set up a solo practice in Warrenville.

Velazquez had a new client, a defendant in a collection case, who came to him just before the deadline for filing a responsive pleading. He had a substantive legal question to kick around, and we did, and I gave him my free advice (worth every penny he paid for it, I must say). (For the benefit of non-lawyers or lawyers in big firms or government settings, this is pretty common among solos. We pick each other's brains; sometimes it helps just to articulate an issue to a colleague. And Orlando has never given me a wrong answer to a bankruptcy question; sadly, however, there have been instances when I didn't immediately know the right questions to ask....)

Anyway, the substantive question addressed, we turned to the problem of efiling into the First Municipal District. He'd signed onto Odyssey, reaching a screen that looked something like this:

He'd entered the case number -- but Odyssey answered "No Record Found."

Well, here on the lower end of the legal food chain, where the clients aren't Fortune 100 general counsels, sometimes clients provide inaccurate information about docket numbers. An experienced attorney like my colleague Orlando would not be discouraged by this. Like the Chuck Yeager-imitating pilots in The Right Stuff, when A doesn't work, one just calmly moves on to try B. In this case, since his client had a fairly distinctive surname, Velazquez figured he'd search by party name. He moved to a screen that looked like this:

The grayed-out Search button turned blue as soon as the first and last names were entered, and Velazquez clicked...



... and got a "No Record Found."

At this point, even a pilot with the rightest stuff would start glancing at the eject button.

How does one file into a case that Odyssey says doesn't exist?

The Cook County Clerk of the Circuit Court's former electronic docket is still operational. I looked up the case using the number Velazquez's client had supplied -- and, sure enough, the case was there. It just wasn't in Odyssey. Not that we could find.

We discussed possible plans of action, but Orlando needed to get to work on the responsive pleading and I had things to do myself.

But I followed up yesterday afternoon. (I'd promised to write this post, after all.)

"Did you get that pleading on file?"

"I got it submitted," Velazquez said.

"How?" I asked. "Did you have to go downtown and ask in person?"

"No," Velazquez replied. "I called Texas."

Odyssey is operated by Tyler Technologies, a Texas-based company.

According to Velazquez, the problem was that he had entered the actual case number on the case number search screen.

That was a mistake.

In Law Division cases one must include the L as part of the case number in order to pull up a case in Odyssey. But in First Municipal ("Civil" in the nomenclature of the Cook County Clerk of the Circuit Court), one must not include the "M1" as part of the docket number -- one must include the extra "1" but not the "M."

Well, that makes sense.


But it was an answer, at least, and the case really was there. And Velazquez had a place to submit his filing.

So why didn't the Party Name search bring the case information up?

Well, said Velazquez, the folks in Texas told him that the Clerk of the Circuit Court has disabled the Party Name search. The feature is still there -- still on the screen -- and the search looks like it's running -- but it's been disabled. And it doesn't tell you that.

So we have a happy ending to one efiling nightmare at least -- and a tip about how to avoid this one pitfall.

We're going to need to share like this to get through this transition to the brave new (and scary) world of Cook County efiling.

Friday, July 20, 2018

The Cook County efiling system is not just slow and inconvenient, it is downright scary... a review, continued

We have this terrible horrible no good very bad efiling system in Cook County -- and it is downright dangerous for us practitioners.

Yesterday I left off with an assertion that the case law on efiling that has so far come down should be terrifying for those of us practicing in Cook County. There are two cases of particular import, both from the Second District, one published -- and the other decided under Rule 23. (In a blog a lawyer can cite a Rule 23 Order. And I intend to.)

The published case is Peraino v. County of Winnebago, 2018 IL App (2d) 170368.

Summary judgment was entered against Plaintiff in a personal injury case on December 2. His motion to reconsider or a notice of appeal was due on January 3. Plaintiff's counsel chose to file a motion to reconsider. But, with one thing or another, including the attorney's illness and deadlines in other cases, the motion wasn't ready to be filed until 11:58 p.m. on January 3. And then the attorney's assistant had difficulty uploading the exhibits, so the motion wasn't file-stamped until 12:04 a.m. on January 4.

Plaintiff's counsel next filed a motion on January 5, this one seeking to have his motion to reconsider filed nunc pro tunc as of January 3. This motion was briefed in the trial court, the trial court ultimately deciding to deny the motion. Plaintiff appealed.

And the Appellate Court held that the trial court was wrong to deny the motion for leave to file nunc pro tunc -- but that did not help the plaintiff any.

No, the Appellate Court determined that it did not have jurisdiction to hear the appeal in the first place, since the trial court lost jurisdiction over the case at the stroke of midnight on January 4.

Moreover, the late-filed motion was not a proper motion for nunc pro tunc relief. The Appellate Court explained (2018 IL App (2d) 170368, ¶16) (internal citations omitted):
[I]f there is proper evidence of a clerical error, the court may use a nunc pro tunc order at any time to correct the mistake.... Stated differently, nunc pro tunc orders incorporate into the record judicial actions taken by the court that were inadvertently omitted due to a clerical error.... However, such a correction must be based on a note, memorandum, or paper remaining in the court record, and it cannot rest on a recollection of an individual or on a new affidavit or testimony.... Here, plaintiff did not seek to correct a clerical error in the trial court's judgment, and the evidence he sought to rely on surrounding the filing date of his motion to reconsider came from outside of the established court record. Accordingly, plaintiff's January 5, 2017, motion could not be resolved on a nunc pro tunc basis.
Nor did the doctrine of revestment apply (2018 IL App (2d) 170368, ¶23): "The revestment doctrine causes the trial court to regain jurisdiction of a case even after 30 days have passed following the entry of a final judgment if both parties actively participate, without objection, in proceedings that are inconsistent with the merits of the prior judgment." However, where "a party opposes setting aside the prior judgment, jurisdiction will not be revested, even if the party does not raise a timeliness objection." Here, because Winnebago County opposed the nunc pro tunc motion, "the parties' actions did not revest the trial court with jurisdiction."

"We acknowledge," the Peraino court concluded, "that the outcome in this case might appear harsh, as plaintiff has lost both his chance to have the trial court reconsider its grant of summary judgment in favor of the County and his chance to have this court review that ruling. However, plaintiff's attorney had 30 days in which to file a motion to reconsider and could even have obtained an extension during those 30 days. He instead waited until less than two minutes before the deadline to attempt to electronically file the motion and unfortunately was unable to upload the motion within that time. As that deadline was jurisdictional, the trial court lacked authority to consider the untimely motion to reconsider and plaintiff's subsequent request to backdate that motion. Plaintiff's notice of appeal was correspondingly untimely, and we lack jurisdiction to consider the merits of this case. (2018 IL App (2d) 170368, ¶24).

So, sure, you say, Peraino isn't that scary. You'd never wait until two minutes before midnight to begin efiling a motion to protect a hard and fast jurisdictional deadline. And, besides, what kind of a person keeps staff working at the office at 11:58 p.m., especially during the holiday season? Karma jumped up and bit that lawyer, but that's not a reason to fear efiling, even into a slow and unpredictable efiling system such as we appear to have in Cook County.

To which I respond, please see In re Marriage of Bordyn, 2018 IL App (2d) 180017-U.

Bordyn concerned a notice of appeal, not a motion to reconsider. And the petitioner didn't wait until nearly the stroke of midnight before making his attempted filing.

No, in Bordyn, the petitioner submitted his notice of appeal for efiling at 2:37 p.m. on the afternoon of the 30th day -- receiving confirmation that the DuPage County Circuit Clerk's office had received the papers with that timely time stamp thereon. However, next morning, at 9:40 a.m., the Clerk rejected the filing. Why? Because the notice of appeal and notice of filing of the notice of appeal were submitted as one document instead of two documents -- the clerk thought they should be filed separately -- and the filing contained counsel's ARDC number instead of his DuPage County attorney ID number. (2018 IL App (2d) 180017-U, ¶¶3-4.)

Petitioner immediately corrected these "errors" and resubmitted the filing -- but now the notice of appeal was file stamped on the 31st day, not the 30th (2018 IL App (2d) 180017-U, ¶4.)

Are you scared yet? You should be. Respondent seized the opportunity and moved to dismiss the appeal as untimely. And the Appellate Court granted the motion on March 1, probably as a matter of course. It presumably did not take a full appellate panel to consult a calendar and determine that January 5 was more than 30 days after December 4.

The Rule 23 Order here under discussion arises prom Petitioner's motion to vacate that order -- which the Appellate Court denied.

After reviewing the language of the Supreme Court's efiling order, including language specifying that "multiple documents combined into one PDF document shall not be accepted (2018 IL App (2d) 180017-U, ¶7), the court acknowledged (2018 IL App (2d) 180017-U, ¶8), "We recognize that this result is harsh, and we are not without empathy for petitioner's circumstances. His arguments hold emotional appeal. Indeed, there appear to be no deadlines with which the clerk's office must comply in the process of accepting or rejecting submitted jurisdictional documents. Here, (unlike the plaintiff in Peraino), petitioner did not submit his documents at the proverbial '11th hour,' resulting in receipt on day 31. Clearly, the documents were received on day 30, early-to-mid afternoon. However, petitioner did not receive from the clerk's office a rejection until the next day, a response time that had jurisdictional implications."

The Appellate Court was not blind to the consequences of its reasoning (2018 IL App (2d) 180017-U, ¶8): "One might imagine scenarios wherein a litigant submits his or her documents even earlier than day 30, but a combination of weekends, court holidays, or even a busy or short-staffed clerk's office nevertheless operate to delay a rejection notice of rejection until after the jurisdictional period has expired. Here, petitioner was not alerted to his mistake until 18 hours after his submission was received by the clerk, and he could not timely correct the basis for the rejection and preserve his jurisdiction. While petitioner's suggestion—that we should treat at least the jurisdictional portion of his submission (the notice of appeal) as filed when it was received into the custody of the clerk's office—is tempting, we have no authority to do so. It is simply not for this court to make exceptions to jurisdictional requirements, re-write supreme court rules, or create new rules in this situation."

Besides, the Appellate Court suggested, petitioner was not entirely without recourse. He might have filed a motion under Supreme Court Rule 303(d) for the late filing of a notice of appeal. But such a motion would have been due within 30 days of January 4... and even if petitioner's motion to vacate the March 1 dismissal was deemed a 303(d) motion, it would have been late. (2018 IL App (2d) 180017-U, ¶9.)

Rule 303(d) is something that we all need to burn into our memory banks at this point -- but, in Bordyn, I could not help but notice that the court did not mention when respondent filed her motion to dismiss the appeal -- something that would have alerted petitioner to the mortal peril threatening his appeal. I don't know, of course, one way or the other, but if you were to tell me that the motion to dismiss wasn't filed until mid-February I wouldn't be at all surprised.

Presiding Justice Donald C. Hudson filed a separate concurrence in the Bordyn case. He was "compelled to concur in the majority's decision" primarily because petitioner didn't timely invoke Rule 303(d). But, he said, he wanted to write separately to "highlight the problematic implications this decision portends." (2018 IL App (2d) 180017-U, ¶13.)

Justice Hudson observed, 2018 IL App (2d) 180017-U, ¶14, emphasis mine, "Like most technological innovations, e-filing was supposed to make things easier and more efficient. Yet in this case the opposite seems to have occurred. Before e-filing, had petitioner submitted two documents that were improperly stapled together, the clerk would likely have simply removed the staple and filed the documents."

Perhaps, Justice Hudson continued, 2018 IL App (2d) 180017-U, ¶15, "It might be advisable to clarify the scope of the clerk's power of rejection. Perhaps, the filing date of a document that is rejected under the circumstances that exist in this case and then correctly resubmitted should automatically relate back to the date of its original submission."

That strikes me as a reasonable place to start.

It would be far better, however, to make it clear that Clerks of the Circuit Court do not have the power to "reject" documents submitted for filing, particularly documents submitted by attorneys, who are, after all, subject to Rule 137 sanction if they submit wholly improper pleadings. Otherwise, we are forcing our clerks to assume evaluative roles, not just engaging in the unauthorized practice of law, but, indeed, exercising judicial powers.

Even in DuPage County, where efiling has been the norm for some time now, and appears to be working fairly well, there will be more cases like Bordyn, Justice Hudson warned.

And here in the County of Cook, with our miserable system, we are heading over a cliff.

The Supreme Court will need to reconsider the details of its efiling orders -- and, please, do so soon.


Postscript: In yesterday's post I wrote about how long it took to file a lengthy motion with voluminous exhibits and the various problems I encountered along the way. And although six days seems unconscionably long, it was not surprising that it that took a significant amount of time to get such a long, complicated document like that on file. So... why should I complain? That could have been merely a special case.

However, this past Tuesday morning, I filed a much simpler notice regarding the filing of a hearing transcript. It took until Thursday evening at 5:05 p.m. to get an acceptance back on that, much simpler document -- almost 55 hours. That can not be acceptable to anyone... can it? But my efiling problems pale compared to those presented by a colleague of mine. I'll report on his issue tomorrow. And it's a doozy.

Thursday, July 19, 2018

Cook County efiling: An incomplete review

Slow. Glacially slow. Maddeningly, dangerously slow.

That is so far my experience with the new Cook County efiling system. And, from what I've heard from colleagues and from what I've been seeing online, specifically from the Civil Practice and Procedure Section on ISBA Central, I am not alone.

But, first, the good news: Free filing online is once again free. It no longer costs $3.95. (I'm still waiting for word of the class action suit on this one. I've saved my receipts.)

I have heard from one colleague who said that she signed up with an EFSP (I believe that's the appropriate jumble of letters) that charges a fee for free filing. But what my colleague did was analogous to paying someone else to file her documents for her. There have always been services willing to take your money and wait in line to file your documents, right?

But this is no longer required.

I can access the virtual file counter through Odyssey File & Serve. In the past, I had efiled in DuPage or Will Counties using I2File -- but I2File is not yet accepting Cook County filings.

The new Cook County efiling system went into effect at the beginning of the month. At the end of that week I had to file a rather involved motion -- one with hundreds of pages of exhibits.

Just my luck.

But, as I'd learned from efiling in DuPage, even competently run systems will have limitations on file sizes for documents to be filed. So I knew I had to break this mammoth motion into more manageable parts. And I had also learned, from my DuPage experience, that it would be best to put cover pages -- with case caption -- on each subpart, this one labeled Exhibits A through J, for example, and that one Exhibits K through N.

Documents are efiled through Odyssey in "envelopes."

Who in the world came up with that name? The way it's used here conjures images of Greylord -- I got what you need in this envelope right here.

I think the Cook County efiling interface must have been designed by someone who saw a file-stamped pleading once. The file stamp winds up on the page in the place you'd expect. But the designer could not possibly have had any experience actually filing documents.

Here is the process by which one filed papers with the Clerk of the Circuit Court of Cook County back in the Old Days --
  1. Create the document, and print it out. (I remember when we typed our documents, on typewriters, and we affixed bluebacks -- but let's stay with the more recent Old Days.)
  2. Sign the document. (Under Ill.Sup.Ct. Rule 137(a), that simple act alone "constitutes a certificate by [the attorney] that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." I will come back to this.)
  3. Make copies. (All parties entitled to service should receive a file-stamped copy.)
  4. Prepare a Notice of Filing for the document -- and sign that -- and make the requisite number of copies.
  5. Go the Daley Center.
  6. Get in the appropriate line on the 6th or 8th floors thereof.
  7. Wait. (The wait times sometimes seemed extraordinary in those days -- 15 minutes sometimes, even a half hour -- and for most of those years when I had occasion to wait in these lines, I didn't have my Twitter feed to consult while I waited. To cut down on the wait times, the Clerk's office set up self-serve stations for free filing, or sometimes opened up a separate 'no fee' line, and these were appreciated -- when they were available. They weren't always. Especially not recently, when the Clerk's office was trying to steer us into paying $3.95 a shot for 'free' filing.)
  8. Eventually, when called to the counter, hand your papers to the clerk, who would stamp the original and put it aside, then stamp the copies and return them to you.
  9. Send the file-stamped copies to opposing counsel. (That's where envelopes used to come into the picture.)
    The current hang-up, even with free documents, is step 8. Instead of the few seconds it would take an experienced counter clerk to file-stamp a dozen copies (a speed I could never come close to imitating, even when I was using those self-serve machines on a regular basis), it now takes DAYS.

    And there's no guarantee that the document will be "accepted."

    Come back with me now to the early morning hours of July 6. I had finished the lengthy motion some hours before, but it took time to divide the motion and exhibits into appropriately-sized parts, and to put on cover sheets. And then I had to try and interface with Odyssey. That took some time, too.

    It turns out my particular motion was too large for one "envelope." So I had to submit two. The motion and some of the exhibits went into one, and the rest of the exhibits, and the proof of service, went into the second. The envelopes were submitted at 3:17 and 3:19 a.m., according to email acknowledgements I received.

    Now I knew better than to expect any response to this filing until business hours and, given the size of the document, I fully expected to wait into Friday afternoon for my file-stamped copies.

    But Friday came and went, with no response.

    Monday afternoon, though, I got the word: One envelope was accepted -- and one envelope was rejected.

    The form email from Tyler Technologies had one box marked "Returned Reason" -- but all it said was "Missing Items Missing Items."

    Another box was marked "Returned Comments." It stated:
    Please put the attorney code in the cross reference section.

    No rejection comment was provided. Please contact the court into which you are filing for more information.
    You had better believe that I did figure out how and where to put my attorney ID number. I did it exactly the same way on the other "envelope" too. And that one was accepted.

    The only difference between the two envelopes was that the motion itself was in one envelope, and that was the one rejected. Now I had chosen not to schedule this motion for hearing, mainly because it is already set for hearing. But I wondered, as I vainly perused both the Odyssey and Circuit Court Clerk websites looking for a number at which to contact the court whether that might have been the problem.

    I eventually found a help number for Odyssey. I called Texas.

    The lady with whom I spoke there was very nice. She seemed to think that I had to specify both my attorney code and the calendar number on which my case was pending in order to successfully file the motion. OK -- I thought -- new system, directions not very clear, but I'll go along with the program. The nice lady in Texas walked me through the process of copying the contents of the rejected "envelope" into a new envelope and how and where to specify the motion calendar in addition to my attorney code. The new envelope was cast into the wine-dark sea of Odyssey within 41 minutes of my receipt of the rejection email.

    The rest of Monday afternoon passed without further word.

    And all of Tuesday.

    And Wednesday morning.

    Late Wednesday afternoon I got a call from someone in the Clerk's office. She was reviewing the renewed filing. And she was about to reject it. I wasn't supposed to put the motion calendar in at all when I wasn't scheduling the motion for hearing. I went into my motorboat imitation, "But, but, but, but the nice lady in Texas told me to do that --"

    "Well, yes," the Clerk's office employee said, "they've been telling people to do that. But it's wrong."

    Let me interrupt this narrative here for an important statement:
    I realize this is the Internet and people here seem incapable of making any rational distinctions. But I must try.

    I've been working with people in the office of the Clerk of the Circuit Court of Cook County since Morgan Finley's time. The people with whom I've dealt over the years -- counter clerks, file clerks, courtroom clerks, the occasional supervisor -- have all been wonderful, polite, professional people. I think this new efiling system is an abomination -- but that in no way means that I think badly of those who have been, and continue to be, the front-line people in that office. These front-line employees in the Clerk's office are just as much victims of this abysmal system as us lawyers and taxpayers.

    So in criticizing the efiling system, I am not heaping opprobrium on those who are stuck administering it. There is considerable blame to go around for this execrable excuse for an efiling system -- but it does not fall on the Clerk's front-line employees. Please try, even though this is the Internet, to grasp that distinction.

    And now, back to the review.
    Cutting to the chase, the Clerk's office employee rejected my filing a second time -- then stayed with me on the phone while I copied the contents of the rejected envelope into now a third envelope. She stayed with me while I recited each step I was taking to perfect my filing -- including getting that attorney code number in as directed (and as I'd done before). I hit send and still she waited with me until the new envelope showed up in her queue. She checked the new filing to make sure I had done all that I said I had done -- and I had -- and she told me that she was accepting the filing right then and there. Five days after this odyssey had begun.

    But I was not home yet.

    The system still had to "process" the acceptance.

    Twenty-one and a half hours later I finally got my confirmation that the filing had been accepted.

    "I don't think they anticipated the volume of filings that we have here," the one-time counter clerk told me while we were getting that third envelope in place. "I think they're a little overwhelmed."

    Overwhelmed? Overwhelmed?

    Well, of course they're overwhelmed, given the way the Supreme Court imposed this efiling regimen on us on a mere whim, at the drop of a hat, with no time to prepare....

    Oh, wait, that's not what happened here at all, is it?

    But the appalling lag times are only part of the problem with this efiling regimen.

    Here is a redacted (and slightly marked-up) screen from Odyssey that was obtained after a pleading was accepted for filing.

    Note the arrows I added pointing to three download links. One, under the heading "Stamped Documents," points to a link for "a collection of court filings for this filing." The other two, under a different heading ("Lead Document") point to one link for "Original File" and the other for "Court Copy."

    Good Lord.

    If these three links don't produce identical copies of the exact same document, namely, the document submitted for filing, we have bigger problems than lag time.

    I am so far confident that this is not an issue. This is merely a dumb and dangerous screen arrangement. There should be one link, and one only, to the file-stamped copy of the document accepted. (Can you imagine how the Sovereign Citizens will run with this one?)

    The Clerk's Office has too much power to 'accept' or 'reject' documents. In the Old Days, one handed over one's papers to the counter clerk, who stamped them and gave them back. There was no evaluation. About the only thing the clerks could screen for was whether the document required a fee. (I'd sometimes get questioned about my attorney ID number -- it's a little unusual -- but the clerk did not have the right to refuse to stamp my documents because he or she thought I'd gotten my ID number wrong. I'd just say 'look it up' -- and sometimes they did and sometimes they didn't. But they always filed my papers.)

    Remember I mentioned that we'd get back to Sup.Ct. Rule 137(a). Here is where it comes back: If I file a document, under the rule, I shoulder the risk that a court may find my document wanting. If it is sufficiently inadequate---so defective---so improper---I may wind up being sanctioned.

    Perhaps some heightened scrutiny at the 'virtual counter' is an inevitable consequence of the explosion in the numbers of pro se litigants. But the Clerk can not practice law and almost any evaluation of a proposed filing beyond whether a fee should be assessed for same moves dangerously close to having the Clerk -- or her front-line employees -- engaged in the practice of law.

    On the basis of my recent experience, I don't think the Clerk's office is spending time weighing the merits of pleadings submitted; rather, the problem lies in the enormously underestimated volume of filings in the Cook County system and the "processing" time that inexplicably follows document acceptance. But this is an area where tremendous abuse can take place, especially where the rejection messages are at best... cryptic.

    If there's no confidence that a filed pleading will be accepted, there will be other consequences as well.

    Take the example of an attorney with a PI case where the statute of limitations is looming. In the Old Days, we could negotiate right up to the last day for filing and, if unsuccessful, throw a complaint together in a nonce, scurrying over to the Clerk's office at 4:25 p.m. (Some of the friendly front-line employees might not be as friendly on such an occasion -- but that's understandable, right?)

    But now... if attorneys can't be sure that a pleading will be accepted... must we file a week in advance of the statute to protect ourselves? Two weeks? What of the complaint that was in a timely-submitted envelope that is rejected for reasons not immediately clear? The resubmitted envelope will bear a later date, the date on which it was resubmitted. Are we not guaranteeing judicial review of the filing process on some unlucky case?

    And the case law that is out so far on this subject should terrify every Cook County practitioner. And that, gentle readers, is where we will pick up this discussion in our next installment.

    Wednesday, July 18, 2018

    On the passing of Dr. Neil Winston

    When somebody drops offline these days, I worry.

    That's a sentence I could not have imagined myself writing back in the mid-1970s when Neil Winston and I were both undergraduates at Loyola. Neil is the guy on the left in the picture above; you probably recognize the guy on the right. When this picture was taken, Neil was the one who was the President -- the President of the Chicago Medical Society.

    In addition to his service in that role, Dr. Winston served as a Trustee for the American Association of Public Health Physicians (from 2006), a Trustee of the Illinois State Medical Society (ISMS) (from 2002), a member of the ISMS House of Delegates (from 1994), and a member of the Illinois Medical Political Action Committee (IMPAC) Board of Directors (from 2002). Dr. Winston was also active with the AMA as a member of the Illinois delegation to the AMA House (from 2006); he served on the Commission to End Health Care Disparities since 2005. He was also a member of the Board of the Illinois Channel. All these biographical details, in fact, are taken from a tribute to Dr. Winston written by Illinois Channel Executive Director Terry Martin.

    These remarkable accomplishments were in the unknown future back when we were at Loyola. This is the Neil Winston I remember from undergraduate days, back when we served together on the student government. But I particularly remember Neil as a photographer. He was officially the photography editor for the Loyolan yearbook only once---I looked it up this afternoon---but my recollection is that he was deeply involved in supplying photographs for the yearbook every year during those long-ago undergraduate years.

    It was through photography that we would would reconnect, many years later, after I joined Facebook. He regularly put up professional-quality photos he'd taken at sporting or political events. I'd "like" his photos and he'd "like" the much more amateurish pictures I'd post of me and my latest grandchild. He even plugged this blog a couple of times, during primary seasons past.

    He was quite active on Facebook -- and then he wasn't.

    I knew Mr. Zuckerberg was fiddling with the Facebook algorithms, whatever they are, and so some people were expected to pop up more frequently, and others less so.

    And I know lots of people who have abandoned Facebook entirely, or at least cut back substantially, because it has become almost as toxic as Twitter.

    But I didn't think either of these a sufficient explanation for Neil's disappearance. So I started to worry. Some weeks ago I looked up his Facebook page. There were all sorts of posts -- and then there weren't any more.

    I searched for Neil's name online at the time, but came up with nothing specific. Or conclusive.

    I looked again this afternoon. I now find that Dr. Winston left us in March.

    I don't know where to send the Mass card. But I felt I should say something. So here goes:

    Eternal rest grant unto Dr. Neil Winston, O Lord, and let perpetual light shine upon him. May his soul and all the souls of the faithful departed, through the mercy of God, rest in peace. Amen.