Civil Procedure

Question 1

SMJ - Circuit Courts

Answer 1

Courts of original and general jurisdiction, unless other court has exclusive jurisdiction (Illinois Supreme Court or federal court)

Question 2

SMJ - Appellate Courts

Answer 2

Appellate jurisdiction, only over final orders.

Exceptions:

1) Injunctions
2) Partial Final Orders
- If lower court finds no just reason to delay
3) Significant Interlocutory Orders by Appellate Court Permission
- PJ, Attorney DQ, or Class Certification
4) Certified Questions
- Materially advance the litigation

Time Frame
- Within 30 days of the order, except certified questions (14 days)

Question 3

SMJ - Supreme Court

Answer 3

Exclusive, original jurisdiction

1) Governor’s vacancies
2) Legislative redistricting

Appellate

• Mandatory: Any order entered by IL court declaring a statute unconstitutional
• Otherwise discretionary

Question 4

Personal Jurisdiction

Answer 4

1) IL law must itself grant PJ

2) IL law must be constitutional

Question 5

Personal Jurisdiction - IL Law bases

Answer 5

1) Consent
- Express
- Implied (D must object to PJ in its 1st response to complaint, and in a timely fashion)

2) Presence
- Actual, voluntary, physical presence when served
- Domicile
- Doing business

3) Long-arm statute (specific to lawsuit)
- Land
- Injury
- Matrimony
- Insurance Contract
- Transaction of business

To the max amount allowed by Constitution

Question 6

Personal Jurisdiction - Constitutional

Answer 6

1) Minimum contacts + fairness

2) Purposeful availment or targeting

Question 7

Service of Process

Answer 7

Who is authorized? Certain gov’t officials, or any nonparty over 18 authorized by court

Time frame? Summons expires 30 days after issuance, but process server can reissue

Proper if:

1) Proper under IL Rules
2) Constitutional (reasonably calculated to apprise parties)

Question 8

Service of Process - Individuals

Answer 8

1) Personal, in-hand delivery
2) Abode Service
3) Waiver

Question 9

Service of Process - Entities

Answer 9

Corporation/Partnership: Personal service, or waiver request, to an authorized/qualified agent or partner.

Partnership exception: Can serve one partner personally, then mail copies to all others if IL connection.

Question 10

Service of Process - Publication

Answer 10

Only available if:

1) Real Property
2) Affidavit
3) Mail
4) Publish

Question 11

Venue

Answer 11

General rule: Proper in a county where either a) any D resides; or b) any part of the cause of action arose.

Exceptions:

1) Governmental units (only principal office)
2) Real property (only where located)
3) Absent Ds (no IL resident D –> any county works)
4) IL Insurance Company Ds (where P resides also works)
5) Libel actions (where libelous article was composed also works)

Question 12

Venue - Motion to Transfer

Answer 12

• Remedy for improper venue
• D must file motion in its 1st response
• Granted in court’s discretion of convenience, and interests of justice

Question 13

Venue - Motion to Change

Answer 13

• Based upon fear of bias or prejudice against party by county inhabitants
• File before judge has resolved a substantial merits-based issue
• Moving party must:
  1) file affidavit fearing prejudice
  2) file 2 supporting affidavits from inhabitants in the county

Question 14

Forum Non Conveniens

Answer 14

Filed in a proper forum, dismissed for gross inconvenience

• Discretionary
• Dismissal
• Gross inconvenience
• Conditional

Question 15

Complaints - Generally

Answer 15

• IL is a liberal fact pleading state.

- Must contain facts constituting a cause of action. Construed liberally to do justice and serve the merits.

Question 16

Complaints - Verified Complaints

Answer 16

• A complaint sworn to by someone with personal knowledge of the facts alleged.
• Not required in IL, but if used, all subsequent pleadings must be verified.

Question 17

Complaints - Punitive Damages

Answer 17

• P must convince judge at a hearing that they’re warranted.

- If allowed, judge grants leave to amend complaint

Question 18

Complaints - Medical Malpractice

Answer 18

Must include affidavit swearing that a qualified healthcare professional has or within 90 days will file a report certifying that the action has merit.

Question 19

Complaints - Trial by Jury

Answer 19

• P must make demand in complaint

- P has constitutional right if claims seeks primarily monetary damages

Question 20

Answers

Answer 20

1) Must fairly and precisely admit or deny those allegations that are true or false
2) Write “insufficient info to admit or deny” plus affidavit swearing after inquiry, you still don’t know

Affirmative defenses must appear in answer or else waived

Trial by jury must be demanded in answer or else waived.

Question 21

Amendments - Generally

Answer 21

Liberally granted on just and reasonable terms to serve the merits.

Question 22

Amendments - Relation Back

Answer 22

Amendment that adds claims/parties, which is not timely, but is allowed to relate back to conform to S/F.

Claims: 1) new claim derives from the same transaction or occurrence as the earlier, timely filed claim

Parties: 1) claim against new party derives from the same transaction or occurrence; and 2) new party must have acquired knowledge that, but for a mistake in name, it would have been sued

Question 23

Amendments - Statute of Limitations

Answer 23

Personal Injury Tort Claims: 2 years from discovery of claim

Statute of Repose: Absolute limit that runs from the occurrence of the claim. Med mal is 4 years

Extension for Fraudulent Concealment

Extension for Disability: 2 more years from when disability is removed

Question 24

Joinder - Generally

Answer 24

Liberal and generally permissive.

1) Of claims: as many as you have against an adversary
2) Of parties: same transaction or occurrence
3) Impleader: third-party claims
4) Interpleader: holder of a common fund

5) Intervention: Act of a nonparty in moving to intervene.
- As of right: if interest will be adversely affected by lawsuit and not protected by parties
- Permissive: court’s discretion to permit if commonality of issues

6) Class Actions

Question 25

Joinder - Class Actions

Answer 25

An action in which a named party represents a class of commonly situated absent parties.

Judicial Oversight

1) Judge must grant motion for class certification
2) Judge must order notice that is reasonably calculated to apprise interested class members
3) Judge must approve of any settlement of the class action

Class Certification

1) Numerosity
2) Adequacy
3) Appropriateness
4) Commonality
5) Predominance

Question 26

Discovery - Generally

Answer 26

1) Method of discovery must be proper

2) Material sought must be within the proper scope of discovery

Question 27

Discovery - Proper Methods

Answer 27

1) Automatic Prompt Disclosure: AIC $50k or less –> auto disclose all bases for claims/defenses, potential witnesses, relevant docs, damages computation, relevant insurance coverage

2) Depositions (discovery or evidence)
- only method that can be used on non-parties

3) Pre-trial disclosure of testifying witness
- controlled testifying experts
- independent testifying experts
- lay testifying witnesses

4) Request to admit
5) Duty to supplement

Question 28

Discovery - Proper Scope

Answer 28

Must be relevant and not privileged.

Work product: any material that has been prepared for litigation, and not in the ordinary course of business.

• Mental Impressions of an Attorney
• All other types

Question 29

Motions - Pre-trial

Answer 29

1) Motion to substitute judges
2) P’s motion for voluntary dismissal without prejudice
3) D’s motion attacking the complaint
4) D’s motion to dismiss the complaint
5) MSJ

Question 30

Motions - During and After Trial

Answer 30

1) Motion for directed verdict
2) Motion for JNOV
3) Motion for new trial
4) Motion to vacate a default judgment
5) Petition for relief from a judgment
- Merit
- Equity
- New facts
- Due diligence

Question 31

Finality

Answer 31

Parties are barred from re-litigating claims (res judicata) or issues (collateral estoppel) which they have already litigated to final judgment on the merits.