Wednesday, November 14, 2012

3d DCA Watch -- Yes Judge Leesfield, Illinois Courts Really Do Exist!



I'm sure many of you woke up this morning with a burning sensation question -- do Illinois courts exist?

I mean, do they really?

You hear a lot about them, but has anyone actually seen one in real life?

Luckily, in resolving a forum selection clause dispute, Judge Cortinas has arrived just in time with the definitive answer:
There is absolutely no set of facts that Appellee could plead and prove to demonstrate that Illinois state courts do not exist. Illinois became the twenty-first state in 1818, and has since established an extensive system of state trial and appellate courts. Clearly, Appellee failed to establish that enforcement would be unreasonable since the designated forum – Illinois – does not result in Appellee’s having “no forum at all.”
Hmm, but maybe Judge Leesfield was thinking about something other than the theoretical existence of the Illinois judicial system in ruling as she did:
Appellee’s third amended complaint alleges the forum selection clause was a mistake that was made at the time the agreement was drafted. Additionally, Appellee attached an affidavit which states that, in drafting the agreement, Appellee’s principal copied a form version of an agreement between different parties, and by mistake, forgot to change the venue provision from Illinois to Florida.
Ahh, the old "scrivener's error"!

Let's see what Judge Cortinas thinks of that:
Appellee would have us create an exception to our jurisprudence on mandatory forum selection clauses based on their error in cutting and pasting the clause from another agreement. Of course, the origin of "cutting and pasting" comes from the traditional practice of manuscript-editing whereby writers used to cut paragraphs from a page with “editing scissors,” that had blades long enough to cut an 8½"-wide page, and then physically pasted them onto another page. Wikipedia, http://en.wikipedia.org/wiki/Cut,_copy,_and_paste (last visited September 17, 2012). Today, the cut, copy, and paste functions contained in word processing software render unnecessary the use of scissors or glue. However, what has not been eliminated is the need to actually read and analyze the text being pasted, especially where it is to have legal significance. Thus, in reviewing the mandatory selection clause which Appellant seeks to enforce, we apply the legal maxim “be careful what you ask for” and enforce the pasted forum.
Ok, aside from the digression into the origins of "cutting and pasting" (which as a history buff I like!), what do you think of this strict application as a matter of policy?

Should there be no exceptions for screwing up the text of a document?

What if -- God forbid -- the parties had to litigate in a barren wasteland, like, say, Oklahoma?

(Do Oklahoma courts exist -- stay tuned for next week!)

9 comments:

Anonymous said...

In his effort to be funny (and perhaps a bit demeaning), is J Cortinas saying the doctrines of unilateral or mutual mistake do not apply to forum selection clauses? If so, I missed the authority he cites for that proposition.

Anonymous said...

Good for Ellen!!

Shoot The Lawyers said...

I think I found the answer. Leesfield is in her later 50's/early 60's. Puts her in the protest generation of the late 60's (for you younger readers, this was the generation whose parents provided them with heretofore unheard of wealth and opportunity and who rebelled over the horrors of having to live in a materialistic society. You can now find most of these types now at your local Lexus dealership on Saturday morning waiting to have their 450 SL's tuned up). In any event, to that generation the words "court" and "Illinois" mean one thing: Judge Rosenberg presiding over the Chicago 7 trial. In their mythology about America (and that covers a lot of ground), this was the trial that symbolized their every complaint about American justice. Now Leesfield is a very smart judge but you gotta wonder if this burning image of yesteryear did not play a part in her really wrongheaded reasoning.

Anonymous said...

Why did Leesfield allow the appellee to amend their complaint 3times if all the dismissals were based on the venue provision in the contract? Either enforce it or not.

Anonymous said...

The Chicago 7 -- actually 8 -- trial judge was Judge Julius Hoffman, not Rosenberg, Shoot the Lawyers. I know, all those Jewish judges look alike.

Anonymous said...

Great news on Judge Thomas!

Shoot The Lawyers said...

I plead guilty. I spent last night reading Citizen Cohn by Nicholas Von Hoffman and still have the name Julius Rosenberg front and center in my brain. That combined with a few too many scotches in a hotel lobby with an ex girlfriend today at lunch and the historical references get very confusing.

Juan Ramirez, Jr. said...

It took seven pages to state that the court was enforcing a forum selection clause, but none discussed whether there was a mutual mistake. I rather suspect Judge Leesfield did not base her decision on the fact that Illinois courts did not exist.

Anonymous said...

It looks like the party who wanted to go to Illinois did not claim it was a mistake. Hard to show it was mutual when only 1 side says so. It also couldn't have been unilateral mistake since this involved lack of due care (not reading). That's why you have to read what you sign.