A Guide to Hey, Maybe Don’t Serve Motions on Dead Opposing Counsel

The opposing counsel is already on the back foot—because they're no longer breathing. And yet, somehow, a motion just landed on their desk. Or rather, their estate's desk. Or perhaps their grieving family's mailbox. This isn't a hypothetical nightmare; it's a procedural catastrophe that happens more often than any family law practitioner wants to admit.

When you serve documents on deceased opposing counsel, you haven't just committed a tactical error. You've handed your opponent's replacement a gift-wrapped excuse to delay, a potential basis for sanctions, and—most critically—you've demonstrated to the court that your attention to detail is questionable. In high-stakes family law matters, that perception alone can cost your client millions.

Why This Happens (And Why It's Inexcusable)

Attorneys die. It's uncomfortable to discuss, but it's reality. What separates competent practitioners from liability magnets is whether they notice before filing that motion for temporary support with the county morgue's newest resident listed on the certificate of service.

The failure typically stems from automation without oversight. Your case management software auto-populates service lists. Your paralegal trusts the system. Nobody checks the ARDC website. Nobody notices the obituary that ran three weeks ago. Nobody questions why opposing counsel hasn't responded to the last four emails.

This is precisely where technology becomes both weapon and wound in family law practice. The same systems that give you discovery advantages through metadata analysis and digital forensics can betray you through blind reliance on outdated contact databases.

The Tactical Consequences

The Protocol That Protects You

Before any service, run opposing counsel through the ARDC's online registration system. Every time. This isn't paranoia; it's due diligence. The registration status will indicate if an attorney is deceased, suspended, or otherwise unable to receive service.

When you discover opposing counsel has died, immediately file a suggestion of death with the court and serve it on the represented party directly. Illinois Supreme Court Rules provide mechanisms for this transition, and following them precisely demonstrates the procedural mastery that wins cases.

Document everything. Screenshot the ARDC lookup. Timestamp your discovery of the death. Create a paper trail that proves you acted with appropriate speed and professionalism. This documentation becomes your shield if the opposing party later claims prejudice from any delay.

The Cyber-Law Intersection

Here's where family law practitioners miss leverage opportunities: a deceased attorney's digital systems don't die with them. Case files on cloud servers, email archives, draft settlement proposals—all potentially accessible to estate administrators or successor counsel who may not implement proper security protocols during the transition.

This chaos creates discovery angles. If opposing counsel's files were improperly secured during the transition period, if confidential communications were exposed, if digital assets weren't properly transferred—these failures can become leverage points. Not through exploitation, but through demonstrating that the other side's house isn't in order while yours operates with precision.

The inverse applies with equal force: ensure your own systems have succession protocols. If you're handling a high-net-worth dissolution and something happens to you, your client's interests cannot depend on whether your paralegal remembers your cloud storage password.

Moving Forward With Authority

The death of opposing counsel doesn't pause your client's needs. Child support obligations continue accruing. Marital assets continue fluctuating. Business valuations become stale. Custody arrangements remain unresolved.

Act decisively. Identify successor counsel or confirm the opposing party is now unrepresented. Adjust your strategy accordingly. An unrepresented party in a complex dissolution requires different handling than a party with new counsel still learning the file.

Your opposition is already losing ground with every day their legal representation remains in transition. Press that advantage through proper channels, with impeccable procedure, and with the strategic clarity that transforms unfortunate circumstances into favorable outcomes.

When procedural complexity threatens your family law matter—or when you need counsel who treats every filing as a tactical opportunity—contact Steele Family Law for a consultation. Your opposition's chaos is your advantage, but only if you have representation prepared to capitalize on it.