Practising in Illinois State Courts: What You Need to Know

In many states, civil procedure in state courts closely resembles that in federal courts. Illinois is not one of those states. Lawyers at global and national law firms that do not have Illinois offices but act as co-counsel with local firms frequently remark on the stark differences between practising in federal court and Illinois state courts. This article will lay out some of the more unusual aspects of practising in state courts in Illinois, particularly in Cook County.

Substitution of judge

New actions filed in Illinois’ circuit courts are randomly assigned to a judge who will preside over the entirety of the case or, in some cases, the initial stages of the case. Illinois law, however, provides parties to a civil case with a statutory right to ask the court to assign a new, randomly selected judge, either “as of right” (meaning the party does not need to identify a reason for asking for a new judge) or “for cause” (meaning there is a reason why the case should be reassigned to a new judge).

The first method – substitution as of right – is the most common. Each party to a case may file a motion asserting its right to have the case reassigned to a new judge one time. This is true for each party (plaintiff or defendant) named in the original complaint, and also for parties that are subsequently added to the case. And it is true regardless of any affiliation among the parties. So, for example, if a parent company and three subsidiaries are named as defendants, each has a separate right to substitution of judge – collectively, four in total.

The ability to file a motion for substitution as of right vests once a party has filed an appearance in the case. In most situations, a judge has no discretion and must grant a motion to substitute judge as of right, with certain limitations:

• a party that previously moved for and was granted a substitution of judge as right cannot do so again;
• the motion must be presented at the beginning of a trial or hearing, and should not be made during the hearing or trial; and
• the judge to be substituted must not have made a ruling on a “substantial issue” in the case; see generally 735 ILCS 5/2-1001(a)(2).

The statute does not define “substantial issue”, but case law provides some limited guidance. Generally, a judge’s rulings on matters that relate to the merits of the case (such as rulings on requests for injunctions, motions to dismiss or motions for summary judgment) are considered rulings on substantial issues, while orders that are more administrative in nature (such as setting dates for filing responsive pleadings or extending deadlines) are not. A significant caveat to the “substantial ruling” limitation is that a party that files its appearance in the case after a judge’s “substantial ruling” – either because the moving party was not yet part of the case or had not yet filed its appearance (and not been found to be in default) – may still file a motion to substitute that judge as of right, and the judge must grant the motion.

It is important to note that other limitations may arise in fringe situations. The Illinois Supreme Court has not foreclosed circuit court judges from denying motions for substitution of judge as of right where doing so is necessary to protect the integrity of the court and prevent abuse or manipulation of the system, such as to prevent judge-shopping, though the precise nature of that limitation is vague. Nevertheless, circuit court judges are generally wary of denying motions for substitution of judge as right because, if it is later determined by a court of review that a circuit court judge erroneously denied such a motion, all proceedings that occurred after the denial are void, and all of the proceedings must then be re-done.

The second method of substitution of judge is “for cause”. This is a less common method with a much higher standard, and is reserved for situations where a judge demonstrates actual prejudice against a party through prejudicial trial conduct or personal bias. It is not enough that a judge makes unfavourable rulings: the judge must be engaged in conduct that prevents a fair judgment in the case; see generally 735 ILCS 5/2-1001(a)(1).

Scope of the attorney-client privilege

Illinois courts apply a more restrictive test in determining whether communications in the corporate context are protected by the attorney-client privilege. In federal court, communications between all corporate employees, regardless of their role or responsibilities, and the company’s counsel are protected by the attorney-client privilege as long as they are made at the direction of corporate superiors in order to secure legal advice, and the communications concerned matters within the scope of the employee’s corporate duties; see Upjohn Co. v United States, 449 U.S. 383, 394 (1981). In Illinois, the Upjohn standard does not apply. Instead, courts apply the much narrower “control group” test; see Consolidation Coal Co. v Bucyrus-Erie Co., 89 Ill. 2d 103, 119-120 (1982).

Under the control group test, only communications between the company’s counsel and those in its control group are protected from disclosure. There are two tiers of employees who qualify as members of the control group: “(1) top management who have the ability to make a final decision; and (2) employees who advise top management in a particular area such that a decision would not normally be made without their advice or opinion, and whose opinion forms the basis of any final decision made by those with actual authority. With respect to the second tier, [there is] a distinction between opinion and information. Thus, while employees whose opinion forms the basis of a decision are part of the control group, individuals upon whom [top management] may rely for supplying information are not members of the control group” (Doe v Twp. High Sch. Dist. 211, 2015 IL App (1st) 140857, para 105). Furthermore, the distribution of otherwise privileged material to individuals outside of the control group destroys the privilege.

Because Illinois’ control group test is much narrower, corporate clients should be advised to limit any attorney-client communications to those within the control group when there is, or might be, litigation in Illinois courts.

Motions to dismiss

Illinois law provides for two types of motions to involuntarily dismiss a pleading:

• motions to dismiss under Section 2-615 of the Illinois Code of Civil Procedure (“2-615 motion”) for failure to state a claim under which relief may be granted; and
• motions under Section 2-619 (“2-619 motion”) to dismiss based on certain specified defects or defences.

Unlike federal court, which only requires notice pleading, Illinois is a fact-pleading jurisdiction, meaning the pleader must allege sufficient facts to support a claim or defence. A pleading does not need to rely on or cite evidence, but instead needs only to allege the facts that support a claim or defence, although the factual allegations must consist of more than mere conclusions.

A 2-615 motion tests the legal sufficiency of the pleading and asks the question: “if all the well-pleaded facts in the pleading are proved, would the pleader be entitled to a judgment in their favour?” As with federal rule 12(b)(6), a 2-615 motion must be confined to the pleading to which it is directed and cannot rely on or raise factual matters outside of the pleading. A court faced with a 2-615 motion construes the allegations liberally and will only grant a 2-615 motion where the pleader cannot prove any set of facts that would entitle them to a judgment. If a pleader can replead their claims with additional facts, they will generally be given a chance to do so, but courts have the discretion to allow successive amendments to defective pleadings; see generally 735 ILCS 5/2-615.

A 2-619 motion, on the other hand, raises defects or defences outside of the pleading that defeat or avoid the pleader’s claims. There are several types of defects or defences that may be asserted in a 2-619 motion, including that:

• the court lacks subject matter jurisdiction;
• a party lacks capacity to sue or be sued;
• the claims raised in a pleading are being litigated by the same parties in another action;
• the claims raised in the pleading have already been adjudicated;
• the claims were not brought within the statute of limitations;
• the claims have been released, satisfied or discharged in bankruptcy;
• the claims are unenforceable under the Statute of Frauds;
• the claims cannot be brought against the moving party because they are a minor or are otherwise disabled; or
• some other affirmative matter avoids or defeats the claim, such as laches, waiver or immunity.

A 2-619 motion accepts the factual and legal sufficiency of the pleading and must show that even if the pleader is entitled to a judgment, the moving party cannot be held liable for all or a portion of the judgment. A party moving to dismiss a pleading under Section 2-619 is not confined to the allegations in the pleading and may raise factual matters outside of the pleading, provided those facts are supported by an affidavit or other evidence, and provided that the moving party is not simply contesting the factual allegations in the pleading; see generally 735 ILCS 5/2-619.

Deposition categories and limits

Illinois discovery rules contain a number of relatively unusual provisions governing depositions. First, unlike the federal system, Illinois distinguishes between discovery depositions and evidence depositions. When serving a notice for deposition, the notice must identify, inter alia, “whether the deposition is for purposes of discovery or for use in evidence” (S. Ct. Rule 206(a)).

By rule, discovery depositions are limited to three hours (as opposed to seven hours under the federal rules). However, the rule also states that a court can extend that time limit “upon showing that good cause warrants a lengthier examination” (S. Ct. Rule 206(d)). As a general matter, courts view the three-hour limit as being geared towards personal injury cases, and will often grant additional time in complex commercial litigation.

There is no time limit for evidence depositions. Parties typically take an evidence deposition to preserve testimony for trial when the witness will be unable to attend the trial. Therefore, an evidence deposition is treated as trial testimony, and objections must be made during the deposition, or they are waived.

Expert reports and discovery

Illinois generally allows broader discovery from testifying expert witnesses than the federal rules do. These differences might be a reason to be cautious in communicating with experts even in federal cases, if there is a chance of related litigation in Illinois state courts. The requirements for expert disclosures are also different. Three examples of this are as follows.

• First, under the federal rules, draft expert reports are not discoverable; see Fed. R. Civ. P. 26 (b)(4)(B); Fed. R. Civ. P. 26, Committee Notes. The Illinois rules contain no such bar to discovery of draft reports, and the broad scope of discovery allowed generally suggests that draft reports are discoverable. Often, for their mutual convenience, parties in Illinois cases will nevertheless agree that the federal rule against disclosure of draft expert reports applies.
• Second, under the federal rules, communications between an expert witness and a party’s attorneys are generally not discoverable; see Fed. R. Civ. P. 26 (b)(4)(C); Fed. R. Civ. P. 26, Committee Notes. By contrast, under Illinois law, communications between attorneys and their experts are discoverable. In many cases, attorneys for the competing parties still agree to follow the federal practice.
• Third, the form of expert reports/disclosures differs between federal and Illinois practice. In the federal system, Rule 26(a)(2)(B) contains very detailed requirements: an expert must issue a report that includes “a complete statement of all opinions the witness will express and the basis and reasons for them”, “the facts or data considered by the witness in forming them”, “any exhibits that will be used to summarise or support them”, “the witness’s qualifications, including a list of all publications authored in the previous 10 years”, “a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition”, and “a statement of the compensation to be paid for the study and testimony in the case”. The Illinois rule is much narrower. Supreme Court Rule 213(f)(3) says that “upon written interrogatory”, for retained experts, the party (not the expert) must identify “(i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any reports prepared by the witness about the case”. Unlike the federal rule, there is no requirement to identify the basis and reasons for the expert’s opinions, the facts or data considered by the witness, the exhibits that the expert will use, the expert’s prior publications and testimony, or the witness’s compensation. Thus, the expert disclosure required in Illinois has much less detail than under the federal rule – often just a few paragraphs. Nevertheless, for tactical reasons, parties sometimes choose to create reports that go beyond the Illinois rule’s requirements and more closely resemble that of the federal disclosure practice.

Divisions of the Cook County Circuit Court

The Cook County Circuit Court is divided into divisions, which in turn are divided into sections. These divisions and sections differ in their jurisdictions, though there is significant overlap among the divisions. Civil lawsuits of any consequence will be filed in either the General Chancery Section of the Chancery Division, or the Law Division. The jurisdiction of each is set forth in Cook County General Order No. 1.2, 2.1.

The General Chancery Section hears cases falling into a broad set of categories, including “class actions, arbitration, injunctions, temporary restraining orders ... mandamus, quo warranto, declaratory judgments, interpleader, ne exeat, specific performance, rescission and reformation of contracts, creditors’ rights, complaints for contribution, actions to quiet title and the setting aside of deeds, partition, equitable liens, redemption rights, declarations concerning the constructions of trust and wills (other than during the period of an estate administration), the appointment of trustees, successor trustees and the removal of trustees (other than during the period of an estate administration), receiverships, accounting cases, dissolution of partnerships and corporations, or other proceedings under the Corporations and Partnership Acts ... statutory review, certiorari ... and all administrative review (except tax matters, matters under the Unemployment Insurance Act (820 ILCS 405/1100))” (Cook County General Order 1.2, 2.1(b)(1)).

The Law Division hears, inter alia, “civil actions at law” in which the plaintiff seeks in excess of USD100,000 (Cook County General Order 1.2, 2.1(a)). The nature of the action does not matter: if a case is an “action at law” (as opposed to equity), and the damages claimed exceed USD100,000, it falls within the jurisdiction of the Law Division. This obviously includes claims for breach of contract, torts, nuisance, and statutory claims.

The jurisdictions of the Chancery Division and the Law Division are obviously not mutually exclusive – a lawsuit might include, for instance, claims for dissolution of a partnership (Chancery) and for money damages for breach of the partnership agreement (Law), or claims that seek both a declaratory judgment (Chancery) and monetary damages (Law).

Thus, one obvious question is which division hears a case that falls within the purview of both divisions. The answer is two-fold. First, the plaintiff decides in which division to file the case. They can file in either Law or Chancery, but there is an important caveat: the assigned judge has the authority – either on the defendant’s motion or sua sponte – to transfer the case from one division to the other (see Cook County General Order 1.3(c)). Such cases generally go to Chancery – there is no written rule that says so, but the general practice is that if a case could have been filed in Chancery, it belongs in Chancery.

Judge assignments in the Chancery Division operate very much as in federal court. Upon filing in the Chancery Division (or transfer into the Chancery Division), a case is randomly assigned to one of the “calendars” (judges) in Chancery. The judge oversees the case for its entirety.

In the Law Division, how a case proceeds depends on the section within the Law Division in which the case is pending. When a case is filed, the plaintiff files a “Law Division Cover Sheet” with the complaint, in which they identify “the appropriate case type which best characterises your action” from among a number of lists. The most commonly used categories are:

• “Commercial Litigation”, with subcategories including Breach of Contract, Professional Malpractice (other than legal or medical), Fraud (other than legal or medical), Consumer Fraud, Breach of Warranty, Statutory Action, Other Commercial Litigation, and Retaliatory Discharge; and
• “Personal Injury/Wrongful Death”, with subcategories including Medical Malpractice, Asbestos, Product Liability, Other Personal Injury/Wrongful Death, Intentional Tort, and Premises Liability.

If the cover sheet identifies a case as “Commercial Litigation”, the case will almost certainly be assigned to the Law Division’s Commercial Calendar Section. If the cover sheet identifies it as “Personal Injury/Wrongful Death”, the case will almost certainly be assigned to the Law Division’s Motion Section. It is important to note that the cover sheet is not dispositive on the question of the section to which a case is assigned – if the assigned judge deems the case better suited for another section, that judge has the discretion to transfer it to that section; see Cook County General Order 1.3(c).

This distinction between the Commercial Calendar Section and the Motion Section is important because of the way cases proceed from there. Cases in the Commercial Calendar Section are assigned to a judge who oversees the case from start to finish, as in the Chancery Division, but cases assigned to the Motion Section proceed on a very different path. The case is randomly assigned to a motion judge, who oversees all pretrial matters in the case – discovery motions, dispositive motions, and the like. When all discovery is complete and all motions decided, the motion judge then enters a Trial Certification Order, designating the case as ready for trial. Shortly thereafter, the parties receive a notice of their trial assignment date. The lawyers go to the courtroom of the Presiding Judge or his designee and get assigned a trial date and to a judge from the Trial Section, who will then preside over the trial on that date. This is subject to the possibility that a party exercises its right to a substitution of judge, in which case the parties go back to the Presiding Judge for a new trial date and judge; see generally Law Division G.A.O. 16-2.

The possibility of multiple parties using their substitution of judge, and the scheduling uncertainty that can result, gave rise to a separate trial assignment process available to litigants in the Motion Section. Given “the difficulty of scheduling witnesses, especially expert witnesses, in complex cases and the importance of trials starting on a date certain”, the Law Division has a process for “advanced random assignment of complex cases for trial” (Law Division G.A.O. 24-1). The process, which requires the agreement of all parties, allows the parties to agree on five possible trial judges for the case, and to waive their right to take a substitution of judge. The parties then present an agreed motion (including the list of five judges) to the Presiding Judge, who assigns the case to one of those five judges for trial; see generally Law Division G.A.O. 24-1.

Conclusion

Navigating a case through the Illinois state court system can often seem daunting and counterintuitive to those who do not frequently practise here. The authors hope that this primer provides readers with a better understanding of the nuances of practising in Illinois state courts.