James Oakley Publishes Chapter In Illinois Civil Procedure Handbook

Litigation partner James Oakley has published a chapter on "Motions, Affidavits, and Orders" in the 2012 edition of "Illinois Civil Practice: Opening the Case." The handbook, published by the Illinois Institute for Continuing Legal Education, guides practitioners through the procedural maze of commencing a civil action in Illinois.

Oakley's 50-page article covers motions to strike, motions to dismiss, affidavits in support of motions, and much more. The article also includes frequent "practice pointers" on best practices when drafting and filing motions, affidavits, and orders. He co-authored the chapter with Richard Chapman, a litigator with Clark Hill in Chicago.

Oakley is a partner in the Business Litigation group and litigates disputes involving contracts for goods or services and promissory notes, as well as business torts, including fraud and tortious interference with contractual relationships. He also represents developers, contractors and material suppliers in mechanics' lien and bond claim matters and construction contract disputes.

This chapter was first published by IICLE® Press

1. MOTIONS IN GENERAL

1. [11.1] Scope of Discussion

   In §§11.2 – 11.22 below, motions as a part of civil practice and procedure before trial are discussed. No effort is made to discuss the contents of special motions or the specific subject matter of the various motions that might be made. These sections are concerned only with the general rules applicable to all motions. Starting with §11.40 below, this chapter deals in detail with motions to strike and to dismiss and their uses. In addition, §§11.23 – 11.33 below discuss affidavits, and §§11.34 – 11.39 discuss orders.

   Although Illinois practice permits motions to be made orally in court without notice, this chapter does not consider those motions but is limited to written motions. Further, the Illinois Code of Civil Procedure, 735 ILCS 5/1-101, et seq., and the Supreme Court Rules contain particular requirements for certain motions, such as motions for continuance and motions for summary judgment, in addition to the general rules regarding motions. The statutory provisions and rules concerning specific types of motions, particularly regarding special purpose motions, must be ascertained in detail in each instance. The purpose of this chapter is merely to cover those rules and procedures related to all motions in general.

2. [11.2] Nature and Use of Motions

   The most frequent use for motions is objecting to pleadings as provided for in 735 ILCS 5/2-615 and 5/2-619 and for summary judgment as provided for in 735 ILCS 5/2-1005. However, motions are not limited to presenting issues or attacking pleadings. Another important function of a motion is as an appearance, as provided for in S.Ct. Rule 181. Further, motions are used for other incidental matters relative to the progress of the cause, such as for a continuance, in relation to discovery procedures, etc.

   A motion must be brought to the attention of the court, and the court must be asked to rule on it. Verlinden v. Turner, 351 Ill.App. 511, 115 N.E.2d 576 (1st Dist. 1953) (abst.). To be considered, motions must be made promptly and at the earliest possible time. Stein v. Automatic Electric Co., 152 Ill.App. 392 (1st Dist. 1910). Obviously, a motion can be made only if there is an action pending between parties, and it is further restricted to incidental matters in the progress of a particular case. Maiman-Hurwitz Manufacturing Co. v. Maiman, 247 Ill.App. 416 (1st Dist. 1928). Motions may request more than one kind of relief or relief in the alternative. Dross v. Farrell-Birmingham Co., 51 Ill.App.2d 192, 200 N.E.2d 912 (1st Dist. 1964); Klairmont v. Elmhurst Radiologists, S.C., 200 Ill.App.3d 638, 558 N.E.2d 328, 146 Ill.Dec. 365 (1st Dist. 1990).

   A motion on which no order is ever entered or that is never called to the attention of the court presumably is waived or abandoned. Brandes v. Illinois Protestant Children's Home, Inc., 33 Ill.App.2d 319, 179 N.E.2d 425 (1st Dist. 1962) (abst.); City National Bank of Hoopeston, Illinois v. Langley, 161 Ill.App.3d 266, 514 N.E.2d 508, 112 Ill.Dec. 845 (4th Dist. 1987); Herricane Graphics, Inc. v. Blinderman Construction Co., 354 Ill.App.3d 151, 820 N.E.2d 619, 289 Ill.Dec. 843 (2d Dist. 2004). See also §11.21 below.

3. [11.3] Basic Statutory Sections and Court Rules

   Code of Civil Procedure §2-620 provides that the "form and contents of motions...