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Illinois Civil Procedure
University of Illinois School of Law
Steigmann, Robert J.

 
Illinois Civil Procedure & Evidence, Professor Steigmann, Fall 2015
 
 
THE ILLINOIS COURT SYSTEM
 
§  Structure: THREE TIERS
o    Circuit Courts (TRIAL LEVEL)
·         23 (legislature can change the number)
Ø  If circuits change, a circuit judge may be moved to a different circuit, but he or she remains a circuit judge because all sitting circuit judges are grandfathered in
Ø  Some single-county, some multi-county
v  Champaign County is part of the multi-county Sixth Judicial Circuit of Illinois
v  Cook County is not part of a numbered judicial circuit—it is its own, and the largest, circuit
·         2 Types of Judges
Ø  Circuit Judges
v  Elected by the people
v  Term: 6 years
v  Retention: May run for retention at end of terms—must (1) get their names on ballot without party designation or opposing candidate and (2) get 60% of vote of people who vote on retention question
ª       Elections are circuit-wide
ª       Almost everyone who runs for retention is retained
v  Champaign County: 6
v  Sixth Judicial District: 14 (number provided by legislature)
v  Illinois Constitution—Each Illinois county must have at least one resident circuit judge
ª       Resident Circuit Judge: Elected judge who is a resident of the county
©       Retention: Elections are circuit-wide
©       Vacancies: Licensed lawyers who are residents of the county are eligible
v  Chief vs. Presiding
ª       CHIEF
©       Elected by majority vote of circuit judges
§       Sixth Judicial Circuit: Person who is elected chief circuit judge is chief circuit judge for life
©       Term: Typically 2 years
©       Designate county in which each circuit judge will sit
©       Name presiding judge of each county
ª       PRESIDING
©       Decide what circuit judges sitting in each county will do—assign them courtrooms and court calls
ª       Single-County Circuits: Really no difference between them
Ø  Associate Circuit Judges
v  Number is set by statute
v  Vacancies
ª       Chief circuit judge must get permission from Supreme Court of Illinois to fill vacancy—judge must ask Administrative Office of the Illinois Courts whether he or she can advertise to fill it
©       If judge gets permission, he or she sends out notice about vacancy to bar associations of counties in area
ª       Any lawyer licensed in Illinois can apply by filling out and submitting application to chief circuit judge
©       Candidate’s reputation is important and like a bank account—everything candidate says or does in front of judge is deposit into or withdrawal from the account
ª       Need majority vote of circuit judges to be selected to fill vacancy—disadvantage if candidate has not appeared before judges making selections
©       1. Circuit judges for county meet to review applications and decide who they want
©       2. Circuit judges for all counties in judicial circuit get together
v  Term: 4 years
v  Retention: Need 60% of vote of circuit judges
v  Champaign County: 5
v  Can run for circuit judgeships while serving
Ø  Have enormous discretion on things like admissibility of evidence and whether complaints are sufficiently clear
·         Handle everything and have divisions for administrative convenience
·         Defendants in general and civil parties must win at this level before trial by short-circuiting cases with things like summary judgment motions
Ø  This avoids them having to try cases, which may be costly and result in losses
·         Pleading Headings
Ø  CORRECT: In the Circuit Court of the Sixth Judicial Circuit, Champaign County, Illinois
v  GET THE NAME OF THE COUNTY RIGHT—every county does things differently
Ø  INCORRECT: In the District Court of Champaign County
v  Illinois does not have district courts at the trial level
o    Judicial Districts (APPELLATE LEVEL)
·         Geographical areas from which appellate judges are elected, in which appellate judges are retained, and to which people go to appeal rulings by trial-level judges
Ø  All appellate judges are elected by voters in each district (some exceptions)
v  Term: 10 years
v  Retention: May run for retention at end of terms—must (1) get their names on ballot without party designation or opposing candidate and (2) get 60% of vote of people who vote on retention question
v  Decide cases in randomly selected panels of three
Ø  A person has a right to appeal in the judicial district in which the circuit court that decided his or her case is located
v  FINAL EXAM (SHORT-ANSWER ESSAY):
ª       Everyone is entitled to a fair trial, but no one is entitled to a perfect one
©       APPELLANT
§       Cannot simply argue that the trial court erred in the ruling being appealed
§       Has the double burden of showing that (1) a bad ruling or error occurred at trial AND (2) the bad ruling or error actually mattered—it denied the appellant the right to a fair trial/substantially affected/harmed/prejudiced the appellant
t  People frequently cannot show the second thing
©       APPELLEE
§       Should argue that the ruling that occurred at trial was not bad
t  Even if the appellate court finds that this ruling was bad, it (1) did not affect the trial’s outcome or (2) was harmless error—no prejudice to the appellant resulted from it
·         5
Ø  Total # of Judges: 54
v  First District: Cook County
ª       Total # of Judges: 24 (divided into groups of 4)
©       Elected Judges: 18
©       Assigned Judges: 6 (serve at Supreme Court of Illinois’s pleasure)
v  Other Districts: Different groupings of elected and assigned judges
ª       Fourth District: Champaign County, etc.
o    The Supreme Court of Illinois (HIGHEST LEVEL)
·         Illinois Constitution—7 justices, all elected (with some exceptions) from the 5 appellate judicial districts
Ø  First District (Cook County): 3
Ø  Other 4 Districts: 1 each
Ø  Term: 10 years
Ø  Retention: May run for retention at end of terms—must (1) get their names on ballot without party designation or opposing candidate and (2) get 60% of vote of people who vote on retention question
§  Appointment & Assignment
o    Illinois Constitution—Supreme Court of Illinois may fill vacancies on Illinois courts by:
·         TEMPORARY APPOINTMENT
Ø  Each Illinois Supreme Court justice is steward for a particular district and decides who will fill vacancies there
v  EXCEPTION (Cook County): 3 justices rotate in making appointments
Ø  Appointees:
v  Can either be judges or lawyers
v  Must give up their current jobs (e.g., circuit judgeships)
v  Hold their positions, which must be filled by election, until elections occur
Ø  Judges who are not currently circuit judges can be appointed to appellate courts
·         ASSIGNING JUDGES TO ANY ILLINOIS COURT
Ø  Appellate judges can be moved around
Ø  Retired and elected, sitting circuit judges can be assigned to appellate courts
v  They hold appellate positions at pleasure of Supreme Court of Illinois and can be removed at any time
ª       They return to being circuit judges if removed
Ø  Elected, sitting circuit judges can be assigned to associate judgeships
v  They do not give up their circuit judgeships
Ø  Associate judges cannot be assigned to circuit judgeships—can only be assigned to associate judgeships elsewhere
§  Precedent
o    U.S. Supreme Court
·         Decisions = PERSUASIVE AUTHORITY
Ø  EXCEPTION: Deal with constitutional doctrine relevant to Illinois
v  Daubert v. Merrell Dow Pharmaceuticals ≠ precedent
Ø  Federal court decisions like these are no more persuasive than sister state decisions
o    Supreme Court of Illinois decisions to deny certiorari are viewed same way as U.S. Supreme Court decisions to deny certiorari
·         They do not (1) import any expression of opinion on merits of case or (2) constitute rulings on merits in any sense
o    Supreme Court of Illinois
·         Decisions = precedent that binds all lower courts and cannot be overruled by Illinois Appellate Court
o    Illinois Appellate Court
·         Can disregard earlier decisions, but cannot legally overrule them—only Supreme Court of Illinois can overrule
·         Decisions from one judicial district are (1) binding on all circuit courts and (2) not binding on other judicial districts
Ø  In absence of authority from Supreme Court of Illinois, circuit courts must follow applicable appellate decisions
v  If only one appellate decision on certain point exists, it is binding precedent on all circuit courts in Illinois, regardless of district that produced it
Ø  EXCEPTIONS
v  2 conflicting opinions, both from districts outside your district
ª       CAN choose which one you think is better
©       Chronology doesn’t matter
ª       CANNOT come up with a third
v  2 conflicting opinions, one from your district and one from another district
ª       MUST ALWAYS follow your district’s opinion—chronology doesn’t matter
·         Decisions filed before 1935 are neither binding nor precedential
o    Rule 23 orders and summary opinions are not (1) binding, (2) published, or (3) to be cited as precedent
§  Miscellaneous Points
o    FINAL EXAM (SHORT-ANSWER ESSAY):
·         2 General Standards of Review
Ø  DEFERENTIAL
v  Reviewing court abides by lower court’s judgment unless judgment was unreasonable (i.e., no reasonable person would reach it)—very hard standard to survive
v  Typically applies to trial judges’ discretionary rulings (e.g., rulings in divorce cases, property disposition disputes, child support cases, etc.)
v  2 Different Deferential Standards
ª       ABUSE OF DISCRETION—applies to evidentiary rulings
ª       CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE—applies to witness credibility
Ø  DE NOVO/NONDEFERENTIAL/NO DEFERENCE
v  Reviewing court independently assesses record and gives no deference to lower court’s judgment
v  Typically applies to (1) judgments that interpret things like Illinois Constitution and the law (e.g., grants of summary judgment) and (2) other matters involving writings
·         Determining and knowing correct standard of review up front is important
Ø  Deferential standard is harder standard to survive
v  If de novo/nondeferential/no deference standard actually applies, argue for it and get judge to apply it to make things easier
Ø  Indicates at trial level party’s chances on appeal
v  If deferential standard, party probably has to win at trial level because trial court’s judgment is unlikely to be reversed
o    Lawyers:
·         Should address all in-court remarks to judge/court only—never address other lawyers in court
Ø  EXCEPTION: Can address people called to witness stand by asking them questions
·         Do not have absolute right to approach bench—must earn it through reputation
Ø  Can request to approach bench on objection at any time, but have no right to stop proceedings

precise point on continuum of liability between negligence and intentional conduct—can be slightly more than negligence, slightly less than intentional conduct, or anywhere in between, depending on circumstances
ª       Cannot plead opinions or conclusions—must plead facts showing willful and wanton conduct
©       Determining whether something is conclusory or a mere editorial comment—“Could this specific allegation be proved, and if so, what evidence could be presented to prove it?”
§       OPINIONS AND EDITORIAL COMMENTS ≠ ADMISSIBLE AT TRIAL
t  Witnesses (1) CAN say defendant drove through red light and (2) CANNOT say defendant drove negligently
©       Example: Teacher (1) had actual knowledge that student was performing experiment without wearing eye protection, (2) had actual knowledge of dangers of performing experiment, and (3) consciously disregarded student’s safety by permitting him to participate in experiment without eye protection
o    In re Estate of Schlenker
·         Under Illinois law, a plaintiff need not allege facts establishing standing
·         It is the defendant's burden to plead and prove lack of standing
·         Court must accept as true all well-pleaded facts in plaintiff’s complaint and all inferences that can reasonably be drawn in plaintiff’s favor where standing is challenged in a § 2-619 motion to dismiss
Ø  Court should grant motion only if plaintiff can prove no set of facts that would support a cause of action
v  Order granting motion to dismiss based on lack of standing presents question of law reviewed de novo
o    Bahrenburg v. AT&T Broadband et al.
·         Dismissal would be appropriate if Comcast's Third–Party Complaint were filed in Illinois state court, because Comcast clearly fails to allege facts demonstrating the requisite degree of intent and misconduct
Ø  But federal notice pleading does not require Comcast to reveal that level of detail at this stage of the proceedings
·         Courts sitting in diversity apply state substantive law only; matters of procedure—importantly including pleadings are governed by federal principles
·         Federal complaints plead claims rather than facts—it is enough to name plaintiff and defendant, state nature of grievance, and give a few tidbits (such as the date) that will let defendant investigate
o    JP Morgan Chase Bank, N.A. v. East-West Logistics, L.L.C.
·         AFFIRMATIVE DEFENSE:
Ø  Must allege facts with same degree of specificity required to establish a cause of action
Ø  Should not be stricken where well-pleaded facts raise possibility that party asserting defense will prevail
Ø  Asserted in § 2-619 (YES, BUT) motions to dismiss
·         Counterclaims differ from affirmative defenses in that counterclaims seek affirmative relief whereas affirmative defenses attempt to defeat cause of action
Ø  Counterclaim Example: “Well, maybe I owe you some money, but you owe me some money, too”
§  B. Service
o    IL Supreme Court Rule 103 (ALIAS SUMMONS; DISMISSAL FOR LACK OF DILIGENCE)
·         On request of any party, clerk shall issue successive alias summonses, regardless of disposition of any summons or alias summons previously issued
·         If plaintiff fails to exercise reasonable diligence to obtain service on a defendant prior to expiration of applicable statute of limitations, action as to that defendant may be dismissed without prejudice
Ø  Plaintiff must effect service on defendant after filing complaint
Ø  Standard Statute of Limitations (PERSONAL INJURY CASES): 2 years
·         If failure to exercise reasonable diligence to obtain service on a defendant occurs after expiration of applicable statute of limitations, the dismissal shall be with prejudice as to that defendant only and shall not bar any claim against any other party based on vicarious liability for that dismissed defendant’s conduct
·         Dismissal may be made on application of any party or on court’s own motion
·         In considering exercise of reasonable diligence, court shall review totality of circumstances, including both lack of reasonable diligence in any previous case voluntarily dismissed or dismissed for want of prosecution, and exercise of reasonable diligence in obtaining service in any case refiled under section 13–217 of Code of Civil Procedure
Ø  Standard of Review = DEFERENTIAL