Illinois Civil Procedure

Question 1

Is personal jurisdiction proper in the Illinois state court?

Answer 1

Personal jurisdiction is the power of the IL Court over the Defendant’s person or property. Illinois Courts have personal jurisdiction if TWO things are true:
1. Illinois law must grant personal jurisdiction; and
2. Illinois law must be Constitutional.
Under Illinois law, there are three bases for personal jurisdiction: (1) consent; (2) presence; & (3) long-arm statute:

Question 2

Is personal jurisdiction in Illinois state court proper? (consent)

Answer 2

There are two (2) forms of consent: express consent and implied consent.

Express consent refers to any verbal indication of consent by Defendant (including a forum selection clause in a K choosing IL state court as the forum which is an express consent to jurisdiction here); &

Consent is implied if Defendant failed to object to personal jurisdiction in a proper and timely manner. Defendant must object to personal jurisdiction in its first response to the complaint within 30 days of service (or 60 days if it waives formal process) or else Defendant has waived it and thus, impliedly consented to jurisdiction in Illinois.

Question 3

Is personal jurisdiction proper in Illinois state court? (presence)

Answer 3

There are three (3) forms of presence: ADD
Actual Presence—means actual, voluntary, physically presence of a Defendant in Illinois while served w/ process

Domicile—meaning Defendant may not actually be present in Illinois, but her domicile is in Illinois and her TRUE HOME is in Illinois, therefore, she intends to return here. Therefore, she is presence by virtue of being domiciled in Illinois even when defendant is not actually present while served in IL (constructive presence).

Doing Business— meaning the regular systematic, continuous, ongoing business is in IL (a single isolated incident is not sufficient nor is merely to solicit business in IL) As IF YOU ARE “AT HOME” IN ILLINOIS. “AT HOME” IS THE KEY PHRASE.

Question 4

Third way that Illinois state court has personal jurisdiction over a defendant:

Answer 4

Third, under IL Long-Arm Statute, there are fourteen acts in which give rise to personal jurisdiction over a defendant who engages in such activity, so long as there is a specific connection between Defendant’s act or conduct and the lawsuit filed. This is specific jurisdiction. LIMIT (IL PJ is “limit-ed”)

L: Land means Defendant owns land, uses or posses land in IL from which the lawsuit derives.

I: Injury in IL from D’s tort from which the lawsuit derives, tort means any breach of duty.

M: Matrimony means D does an act in IL from which an action for separation, annulment, or divorce derives. SAD

I: Insurance K meaning D enters an insurance K for a risk located in IL from which the lawsuit derives.

T: Transaction of business means this can be a single transaction in IL from which the lawsuit derives

Question 5

Is jurisdiction proper over the defendant in Illinois? (last rule for IL state jurisdiction statute)

Answer 5

Finally, Illinois courts also have personal jurisdiction to the maximum extent allowed by the Constitution.

Question 6

Transition to second part of personal jurisdiction analysis

Answer 6

EVEN IF ILLINOIS LAW GRANTS PERSONAL JURISDICTION, ILLINOIS LAW MUST ALSO BE CONSTITUTIONAL.

Personal jurisdiction is constitutional if Defendant has “such minimum contacts with the forum so jurisdiction does not offend traditional notions of fair play and substantial justice.” Caselaw has dictated that personal jurisdiction is Constitutional if defendant is domiciled in the forum, or consents to personal jurisdiction in the forum or is voluntarily present in the forum when served with process.
Absent the aforementioned, there are a set of factors in which a court will analyze to decide whether personal jurisdiction over the defendant is Constitutional. First, there must be a relevant contact between Defendant and the forum state. (contact, relatedness, fairness).
The issue becomes whether defendant purposefully availed himself to the benefits of Illinois, meaning Defendant’s voluntary act evidenced defendant “reaching out” to the forum state and has target the forum or its consumers and therefore, it is foreseeable by defendant’s contacts that it may be hauled into court in the forum. (+ relatedness [specific/general] + fairness [in a specific jurisdiction scenario, the court will look several fairness factors in determining whether PJ is constitutional including: the burden on the defendants, parties, and the witnesses; the state’s interests; and the plaintiff’s interests.

Question 7

General jurisdiction v. Specific jurisdiction

Answer 7

If the claim is related to defendant’s contact with the forum, the court might uphold PJ even if D does not have much contact with the forum (depending on whether PJ would be fair). Where the claim arises from D’s contact with the forum, it is called Specific Personal Jurisdiction. If the claim does not arise from D’s contact with the forum, then, jurisdiction is ok ONLY if the court has General Personal Jurisdiction. If so, D can be sued there for a claim that arose anywhere in the world. To have General PJ, it must be true that D is at “home” in the forum. So a D who is “at home” in the forum can be sued there for a claim that arose anywhere in the world; that is general PJ. But a D who is not “at home” in the forum can only be sued there for a claim arising from those activities; that is specific PJ.

Question 8

Was the service of process proper under Illinois state law?

Answer 8

Process is proper if two things are true: (1) the method of process must be proper under Illinois own law and (2) the method must be Constitutional.

Question 9

Standard for the method of process to be constitutional?

Answer 9

Service of process is Constitutional if it is reasonably calculated to apprise the parties of litigation.

Question 10

Mechanics of proper service in Illinois

Answer 10

In Illinois, the Sheriff, deputy, and the corner are authorized process servers. In addition, any non-party who is 18 years or older and authorized by the court in its discretion upon motion to serve process.
For effective service, the authorized process server must serve the summons before its expiration. The summons expires 30 days after issuance, however, the summons can be reissued and served so long as the process server used reasonable diligence in effectuating service. (differs from federal court which is 120 does from filing complaint)

Question 11

Under Illinois law, was the method of service proper for the individual?

Answer 11

The basic methods of proper service on individuals in Illinois are personal service (the authorized process server makes personal, in-hand delivery to the defendant’s person; abode service meaning the authorized server must leave the process at the defendant’s last and usual place of abode with someone who is at least 13 yrs old, informing that person of its contents and mailing a copy to that same address; or waiver where the plaintiff simply mails the complaint to the defendant with a request that defendant waive formal process methods (giving defendant 60 days to respond to the complaint instead of 30 [21 in fed ct])

Question 12

Under Illinois law, was the method of service proper for the entity?

Answer 12

A basic method of process on entities under Illinois law is to serve a corporation or partnership, you must make personal service on or mail a request to waive to an authorized agent, a qualified agent, or any partner if you’re suing a partnership. A qualified agent is an agent whose duties indicate an appreciation of a need to transmit the process to a proper personnel. If you serve one partner personally, you may then mail the process to all other defendant partners who have an Illinois connection (either reside here or being sued on an IL transaction.

Question 13

What is the partnership rule for method of proper service in IL?

Answer 13

you must make personal service on or mail a request to waive to an authorized agent, a qualified agent, or any partner if you’re suing a partnership. A qualified agent is an agent whose duties indicate an appreciation of a need to transmit the process to a proper personnel. If you serve one partner personally, you may then mail the process to all other defendant partners who have an Illinois connection (either reside here or being sued on an IL transaction.

Question 14

In Illinois, was publication a proper method of service?

Answer 14

RAMP
Publication is a proper method of service only if:
(1) the action involves the defendant’s real property in IL; and
(2) plaintiff filed an affidavit swearing that defendant is outside the state or after due inquiry could not otherwise be served, and
(3) plaintiff must mail a copy of the process to the defendant’s last known address, if known, and
(4) plaintiff must publish once a week for three weeks in a row in order to have proper service by publication.

Question 15

Venue is proper under illinois…

Answer 15

Generally, under Illinois law, venue is proper in any county where either (1) any defendant resides (people reside where they are domiciled and organizations reside anywhere they are doing business, have an office, or any single partner in a partnership resides); or in a county where any part of the claim arose. Generally, proper venue does not turn on where Plaintiff resides. There are specific venue exceptions to this rule, however. GRAIL!!
Governmental unit defendants–venue is proper only where its principal office is located
Real property-venue is proper only where the land is located
Absent defendants –if no defendants reside in IL then venue is proper in any county, even where P resides
Illinois insurance co defendants can be sued in the county where P resides plus any county where D resides or where any part of the claim arose.
Libel–In a libel action, venue is proper in a county where any defendant resides or where the libelous article was composed.

Question 16

How to remedy an improper venue?

Answer 16

Tp file a motion to TRANSFER venue to a proper venue it its first response or else waived which will be granted in the court’s discretion for the convenience of the parties and witnesses and the interest of justice.

Question 17

What is a motion to change venue?

Answer 17

Definition: a motion to change venue is a motion to relocate the action based upon a fear of bias by the inhabitants of the county. The movant must file an affidavit swearing that it fears biased against it and must include at least two affidavits of the inhabitants that support the defendant’s claim of bias. You must file the motion to change venue before the judge has resolved any substantial merits-based issue.

Question 18

Venue under illinois law

Answer 18

Venue

• The general rule for venue is that venue is proper in a county where either:
  (1) Any defendant resides (meaning that people reside where they are domiciled and organizations reside anywhere they are doing business, have an office, or any single partner resides if the entity is a partnership; OR
  (2) In a county where any part of the claim arose.

Where Plaintiff resides is generally irrelevant in determining a proper venue.

Question 19

What is the remedy for improper venue under Illinois law?

Answer 19

the D must file a MOTION TO TRANSFER to a proper venue in its FIRST RESPONSE which will be granted in the COURT’S DISCRETION for the convenience of the parties & witnesses & the interest of justice

Question 20

What is Forum Non Conveniens and when is it proper?

Answer 20

Forum non conveniens means that although the action was filed in a proper forum with proper jurisdiction and proper venue, nonetheless, the court has discretion to transfer or dismiss the action for gross inconvenience. Under Forum non conveniens, the court has discretion to weigh relative inconvenience of the parties and witnesses for example. Dismissal is a proper remedy for forum non conveniens but there must be gross inconvenience to the parties and witnesses (e.g., they live nowhere near the forum) and finally, since dismissal is a proper remedy under this doctrine, granting dismissal is conditional. Plaintiff picked the right forum so dismissal is a harsh remedy, so the judge must make sure defendants will waive any objections to being re-sued in a more convenient forum within 6 months. (forum non-think FOUR–DDGC-dismissal, discretionary, gross, and conditional)

Question 21

Rules governing pleadings in Illinois

Answer 21

There are two kinds of pleading states: fact pleading & notice pleading. Illinois is a LIBERAL FACT PLEADING state. Therefore, in Illinois, complaints must contain facts that constitute a cause of action. But in Illinois, pleadings are construed liberally to do justice and to serve the merits. However, Illinois has special rules governing the requirements for verified complaints and complaints based on a written instrument. Moreover, Illinois deviates from the general rule governing complaints for situations involving a prayer for punitive damages, allegations/claims of medical malpractice, and a trial by jury.
[DISCUSS EACH]

Question 22

However, Illinois has special rules governing the requirements for verified complaints and complaints based on a written instrument. Moreover, Illinois deviates from the general rule governing complaints for situations involving a prayer for punitive damages, allegations/claims of medical malpractice, and a trial by jury. Discuss each nuance rule.

Answer 22

a. Verified Complaints: A verified complaint is a complaint that is sworn to by someone of personal knowledge of the facts alleged. In Illinois, complaints need not be verified, but they are verified, every subsequent pleading must be verified as well on both sides of the litigation.
b. Complaints based on a Written Instrument: In Illinois, a complaint based on a written instrument must include a copy of that instrument as an exhibit attached to the complaint.
c. Punitive Damages: A complaint may not initially request any punitive damages. If the Plaintiff pleads punitive damages initially in the complaint, the damages may be stricken by opposing parties. If a Plaintiff wants punitive damages, the Plaintiff must instead convince the judge at a hearing that punitives may be warranted and if so, then the judge will grant Plaintiff a leave to amend the complaint to add that prayer for relief.
d. Medical Malpractice: In a medical malpractice cause of action, the Plaintiff must include an affidavit in the complaint swearing that a qualified health care professional has, or within 90 days will, file a report certifying that the action has merits.
e. Trial by Jury: If Plaintiff wants trial by jury, Plaintiff must demand trial by jury in a proper and timely manner or else it is waived. For the Plaintiff, this means such demand must appear in the complaint. If the claim seeks mainly monetary damages, then Plaintiff has a constitutional right to trial by jury.

Question 23

The rules governing answers in illinois

Answer 23

In Illinois, the answer must fairly and precisely admit all allegations that are true and the defendant may deny those allegations that are not true. Further, Respondent may state “insufficient information from which to admit or deny,” however, if he does, then he must attach an affidavit swearing that after due inquiry, the party could not admit or deny the allegations in the complaint.

In IL, the defendant must include all affirmative defenses in the answer or else they are waived.

Also, if Defendant wants trial by jury and has a right to it he must make that demand in the answer or else that too is waived.

Question 24

The rules for amendments to pleadings in illinois

Answer 24

In Illinois, amendments to the pleadings shall be liberally granted on “just and reasonable” terms to serve the merits unless the amendment runs afoul to the relevant statute of limitations. Whether the court grants a motion for leave to amend when the amendment runs afoul of a statute of limitations depends on whether the Illinois rules governing “relation back” for amendments is applicable so that the relation back of amendments conform to the statute of limitations period.

Question 25

Relation Back Doctrine

Answer 25

Relation back involves an amendment to complaint that adds claims or new parties which is not timely but which relates back in time to an earlier, timely filed complaint to conform to the running of the statute of limitations period. The party seeking the amendment files a motion for leave to amend to relate back. An amendment adding a new claim relates back if the new claim derives from the same transaction or occurrence or series thereof as the earlier, timely filed claim. Relation back for parties (see other card)

Question 26

Requirements for relations back of parties.

Answer 26

An amendment adding a new party relates back if two things are true:

1) the claim against the new party derives from the same transaction or occurrence or series thereof as that earlier timely filed claim AND
2) the new party acquired notice/knowledge that but for a mistake in name, it would have been sued. The new party must have acquired this knowledge within the time of reasonable diligence allowed for service of process (although Illinois does not have a fixed time limit of service of process). The knowledge could be acquired after the statute of limitations has run.

Question 27

What is limitation period for personal injury tort claims

Answer 27

Personal Injury Tort Claims: The claimant has two years to file a personal injury tort claim from his discovery of that tort claim. The Plaintiff then can serve with process after that period as long as within the time of reasonable diligence allowed for service of process [i.e. acquired after the statute of limitations had run] (pretty liberal as long as due diligence).

Question 28

What is a statute of repose?

Answer 28

A Statute of Repose is an absolute time limit on filing claims that runs from the occurrence NOT THE DISCOVERY of the claim. For example, medical malpractice action, there is an absolute time bar, regardless of when you discover the claim of four years. Extensions overcome a statute of limitations and state of repose.

Question 29

What is limitation period for medical malpractice suits?

Answer 29

A Statute of Repose is an absolute time limit on filing claims that runs from the occurrence NOT THE DISCOVERY of the claim. For a medical malpractice action, there is an absolute time bar, regardless of when you discover the claim. The statute of repose is four years. Extensions overcome a statute of limitations and state of repose.

Question 30

Can the statute of limitations period be extended?

Answer 30

There may be an Extension of limitations period for fraudulent concealment. The statute will be extended if the defendant does some act that forestalls the plaintiff from discovering the basis for its claims.

Also there may be an extension of limitations period for disability. If the Plaintiff is under the age of eighteen or otherwise disabled from filing, the limitation period will be extended two years after the disability is lifted.
Extensions overcome a statute of limitations and state of repose.

Question 31

Joinder issues

Answer 31

Joinder refers to the process by which parties join/add claims or parties to an underlying litigation. The general policy in Illinois is liberal governing joinder of claims and parties to a single lawsuit. For claim joinder, in Illinois, a party may join as many claims that that party has against an adversary regardless of whether or not its connected to the original claim. Moreover, unlike federal courts which are courts of limited jurisdiction thus need a jurisdictional basis for joinder (e.g., supplemental jurisdiction, federal question, or diversity jurisdiction), state courts are courts of general jurisdiction; thus jurisdiction over the claim is generally not an issue for joinder.
Further, a party can join other absent parties to a lawsuit so long as the claims against those parties derive from the same transactions or occurrences or series thereof.

Question 32

Impleader

Answer 32

3P Claims:
Defendant may implead a brand new claim against a brand new third party if that new party may be liable to the Defendant for all or part of the Defendant’s same liability to the Plaintiff. “indemnity” or “contribution” [same as federal]

Question 33

Interpleader

Answer 33

The holder of a common fund may file a lawsuit as a Plaintiff and interplead as defendants all of its rival claimants to its common fund. [same as federal]

Question 34

Whether the IL state judge should permit Intervention

Answer 34

Intervention refers to an act of non-party in moving to intervene in an ongoing lawsuit. There are two types of intervention: as of right and permissive.

The intervener has the right to intervene if it has an interest, which as a practical matter would be adversely affected by a lawsuit & not protected by the parties in the lawsuit.

Also, there is permissive intervention. The court has discretion to permit intervention if there is a COMMONALITY OF ISSUES between those in the ongoing lawsuit & those affecting the intervenor

Question 35

Whether the court should grant a class action/ Did the court properly certify a class action?

Answer 35

(remember appealable right away)
A class action is an action in which a named party represents a class of commonly situated absent parties. A fundamental requirement for class actions in Illinois requires a tremendous judicial involvement in three areas. The judge must decide whether or not to grant a motion for class certification. The judge must order notice to the class that is reasonably calculated to apprise interested class members and third, the judge must approve of any settlements. 
Whether or not the judge should grant a motion for class certification depends on whether the requirements for under illinois law for all types of class actions are met. (NAACP)
N:  Numerosity—meaning the class must be so numerous that joinder of them all would be impracticable (40 plus)
A:  Adequacy meaning the named party & class counsel must fairly & adequately protect the class
A:  Appropriateness—meaning class action device must be an appropriate method of resolving this many claims
C:  Commonality—meaning there must be common issues of fact or law that pertain to the class
P:  Predominance—means that common issues must predominate over the individual issues

Question 36

What are the requirements for class certification under Illinois law?

Answer 36

N:  Numerosity—meaning the class must be so numerous that joinder of them all would be impracticable (40 plus)
A:  Adequacy meaning the named party & class counsel must fairly & adequately protect and represent the class members.
A:  Appropriateness—meaning class action device is an appropriate method of resolving these many claims
C:  Commonality—meaning there must be common issues of fact or law that pertain to the class
P:  Predominance—means that common issues must predominate over the individual issues 
**NAACP

Question 37

An issue of discovery

Answer 37

Material is Discoverable if two things are true:

1. The method of discovery must be proper; &
2. The material sought must be w/in the proper scope of discovery

There are several proper methods of discovery in Illinois.
[different than federal court]
1. AUTOMATIC PROMPT DISCLOSURE:
2. depositions
3. pretrial disclosure of testifying witneese
4. request to admit
5. Duty to suplement

proper scope:
1. MATERIAL IS W/IN THE SCOPE OF DISCOVERY if it is: relevant & not privileged

Question 38

Methods of discovery

Answer 38

There are several proper methods of discovery in Illinois.
[different than federal court]
1. AUTOMATIC PROMPT DISCLOSURE: in IL actions in which the amount in controversy is 50k or less, each side must automatically disclose the following:
a. All factual and legal bases for claims & defenses;
b. All potential witnesses
c. All relevant documents
d. Damages computation; &
e. Relevant insurance coverage

2. DEPOSITIONS
3. DEPOSITIONS: the deposition is the only method that can be used against a non-party
   a. Discovery: all depositions are presumed to be discovery depositions unless labeled as evidence depositions & b/c presumed they are discovery deposition they are limited in nature to no more than three (3) hours, can be used at trial only to impeach as an admission or in the courts discretion if the deponent becomes unavailable at trial

b. Evidence: by contrast, must be labeled as such in the notice & if so, there is no time limit & it may be used at trial for any purpose of (1) deponent unavailable or (2) health care professional
3. PRE-TRIAL DISCLOSURE OF TESTIFYING WITNESSES: must be responded to within 28 days—a party may serve an interrogatory on another party requesting disclosure of testifying witnesses that must be responded to within 28 days
a. Controlled Testifying Experts: must provide experts full qualifications & full report of its opinion, i.e. full disclosure here
b. Independent Testifying Experts: police officers & treating doctors for example—must provide a summary of their expected opinions
c. Lay Testifying Witnesses: disclose the topics of their testimony
d. Request to Admit: hybrid b/w discovery & pretrial allows one party to request to another party to admit facts or the authenticity of documents a request that is not denied under oath within 28 days is deemed admitted
e. Duty to Supplement: Illinois each side has ongoing & automatic duty to supplement & update its prior disclosure within a reasonable time of discovering new information

Question 39

scope of discovery

Answer 39

1. MATERIAL IS W/IN THE SCOPE OF DISCOVERY if it is: relevant & not privileged
2. RELEVANCE: relevant to any part of any claim or defense & it need not be admissible at trial b/c IL liberally construes this standard
3. NOT PRIVILEGED? Therefore means materially that is privileged is not discoverable
4. WORK PRODUCT: is any material that has been prepared for litigation & not in the ordinary course of business

a. The Mental Impressions of an Attorney: any form all memos, notes, etc. the rule is that this is not discoverable unless it would be impossible to obtain the information from any other source
b. All Other Types? Every other kind of work product other than attorney mental impressions are freely discoverable except for consulting experts who can be discovered only upon exceptional circumstances

Question 40

under Illinois law, pretrial motions

Answer 40

A. Pre-Trial Motions

1. MOTION TO SUBSTITUTE JUDGES: Each side has the right to change the judge one time without cause. This motion must be filed before the judge resolves any substantial merits-based issue.
2. P’S MOTION FOR VOLUNTARY DISMISSAL W/O PREJUDICE: P has the right one time without prejudice as long as before trial OR before D has filed a counterclaim. The P has up to the SOL, up to one year after voluntary dismissal, whichever is longer, after going away and coming back to claim.
3. D’S §2-615 MOTIONS ATTACKING THE COMPLAINT: Pre-answer motions that attack the face of the complaint by striking allegations that are improper or dismissing claims for failure to state sufficient factual allegations that make up a cause of action. This is like the Motion to Dismiss—however—it is pre-answer motion, meaning that if you answer, you waive this facial attacks meaning no material outside the complaint can be considered.
4. D’S §2-619 MOTION TO DISMISS THE COMPLAINT: Based on an affirmative matter outside the complaint which defeats the claims and therefore can be filed with the answer and matters outside the complaint can be considered in resolving this motion.
5. MOTION FOR SUMMARY JUDGMENT: (eve of trial) A motion for SJ will be granted if there is no genuine issue of material fact for trial such that judgment becomes proper as a matter of law. However, it is not enough just to do with complaint –pay attention to evidence and use the evidence & the phrase “In this case,” a lot! Judgment without benefit of trial, i.e., summary judgment means that there is no longer a genuine issue of material fact.

Question 41

2-619 motion

Answer 41

D’S §2-619 MOTION TO DISMISS THE COMPLAINT: Based on an affirmative matter outside the complaint which defeats the claims and therefore can be filed with the answer and matters outside the complaint can be considered in resolving this motion.

Question 42

Motion for summary judgement

Answer 42

5. MOTION FOR SUMMARY JUDGMENT: (eve of trial) A motion for SJ will be granted if there is no genuine issue of material fact for trial such that judgment becomes proper as a matter of law. However, it is not enough just to do with complaint –pay attention to evidence and use the evidence & the phrase “In this case,” a lot! Judgment without benefit of trial, i.e., summary judgment means that there is no longer a genuine issue of material fact.

Question 43

2-615 motion

Answer 43

3. D’S §2-615 MOTIONS ATTACKING THE COMPLAINT: Pre-answer motions that attack the face of the complaint by striking allegations that are improper or dismissing claims for failure to state sufficient factual allegations that make up a cause of action. This is like the Motion to Dismiss—however—it is pre-answer motion, meaning that if you answer, you waive this facial attacks meaning no material outside the complaint can be considered.

Question 44

motion for voluntary dismissal without prejudice

Answer 44

2. P’S MOTION FOR VOLUNTARY DISMISSAL W/O PREJUDICE: P has the right one time without prejudice as long as before trial OR before D has filed a counterclaim. The P has up to the SOL, up to one year after voluntary dismissal, whichever is longer, after going away and coming back to claim.

Question 45

Motion to substitute judges

Answer 45

1. MOTION TO SUBSTITUTE JUDGES: Each side has the right to change the judge one time without cause. This motion must be filed before the judge resolves any substantial merits-based issue.

Question 46

Motions during and after trial

Answer 46

B. Motions During & After Trial

1. MOTION FOR DIRECTED VERDICT (Judgment as a Matter of Law):
2. MOTION FOR J.N.O.V. (Renewed Judgment as a Matter of Law):
3. MOTION FOR NEW TRIAL:
4. MOTION TO VACATE A DEFAULT JUDGMENT:
5. PETITION FOR RELIEF FROM A JUDGMENT:

Question 47

Res judicata

Answer 47

A. Res Judicata: (parties) means a claim which has been fully & fairly litigated to a final judgment on the merits cannot be re-litigated by the parties

Question 48

Collateral Estoppel

Answer 48

B. Collateral Estoppel (parties): means (issues) an issue which has been fully & fairly litigated as part of a final judgment on the merits cannot be re-litigated by the parties

Question 49

finality rule

Answer 49

C. Finality Rule: therefore, the parties are barred from re-litigating claims or issues which they have already litigated to a final judgment on the merits.

Question 50

offensive collateral estoppel

Answer 50

D. Offensive Collateral Estoppel: same fraud…see hypo

Question 51

When does discovery must be automatically disclosed?

Answer 51

In IL actions in which the amount in controversy is 50k or less, each side must automatically disclose the following:

1. All factual and legal bases for claims & defenses;
2. All potential witnesses
3. All relevant documents
4. Damages computation; &
5. Relevant insurance coverage

Question 52

Rules governing discovery depositions:

Answer 52

Depositions are the only discovery method that can be used against a non-party
A Discovery deposition under IL Law:
All depositions are presumed to be discovery depositions unless labeled as evidence depositions & b/c presumed they are discovery deposition they are limited in nature to no more than three (3) hours, can be used at trial only to impeach as an admission or in the courts discretion if the deponent becomes unavailable at trial

Question 53

Rules governing evidence depositions and time limits

Answer 53

• Evidence Depositions: Evidence depositions must be labeled as such in the NOTICE. And if so, there’s no time limit and it may be used at trial for any purpose if the deponent is unavailable or if a deponent is a health care professional.

Question 54

Do you have to disclose witnesses before trial in illinois?

Answer 54

3. Pre-Trial Disclosure of Testifying Witnesses: A party may serve an interrogatory on another party requesting disclosure of all trial witnesses, expert or layperson, which must be answered within 28 days [different than federal ct! experts are automatically disclosed! And witness before trial]

Question 55

Request to admit rules under il law

Answer 55

a party may serve a request to admit certain facts or to admit the genuineness of documents. A party who fails to deny a request to admit within 28 days has deemed to admit those not denied.

Question 56

Duty to supplement in IL law

Answer 56

In Illinois, each side has an automatic obligation to update, supplement its prior responses within a reasonable time of discovering new information.

Question 57

Proper scope of discovery under IL law

Answer 57

The Proper Scope of Discovery
1. Material is Within the Scope of Discovery if it is relevant and not privileged. Relevant is broad and liberally construed. One of the privileges is work product which is any material that has been prepared for litigation and not in the ordinary course of business.
Mental Impressions of an Attorney are generally not discoverable unless it is impossible to get any other way. (different than federal court!)
Everything else is generally, freely discoverable unless a party has consulting experts which can be discovered only upon exceptional circumstances.

Question 58

Motion to substitute judges under il law

Answer 58

Each side has the absolute right to substitute the judge one time without cause. This motion must be filed before the judge resolves any substantial merits-based issue.

Question 59

Plaintiff’s Voluntary dismissal without prejudice

Answer 59

Plaintiff’s motion for voluntary dismissal without prejudice is when the plaintiff has filed a lawsuit and on its own has motioned to dismiss the lawsuit without prejudice voluntarily to refile that lawsuit later on. The plaintiff has the right one time to take a voluntary dismissal before a counterclaim is asserted upon him or before trial. The counterclaim (extinguishes that right) You have one year to refile your lawsuit even if that one year extends beyond the statute of limitations.

Question 60

Petition for Relief from a Judgment:

Answer 60

(vacate judgment)
Petition for Relief from a Judgment: is an extraordinary remedy for judges tainted by fraud or perjury. The petition must be filed between thirty days and two years after the judgment. The proponent of the petition must follow certain requirements including: there was merit to your claim or defense; equity demands relief in the wake of fraud or perjury; new facts have come to light since the judgment, which cast doubt on that judgment and despite due diligence, the proponent could not have discovered those new facts until after judgment.

Question 61

Motion to vacate a default judgment

Answer 61

Defendants will suffer a default judgment if they fail to respond to the complaint in a timely manner but that default judgment will be vacated liberally if it is filed within 30 days of judgment.

Question 62

Motion for New Trial:

Answer 62

Motion for New Trial: Will be granted in the courts discretion for either (1) errors at trial affecting the parties’ substantial trial rights (BIG mistakes); or (2) the verdict was merely against the manifest weight of the evidence.

Question 63

Motion for Directed Verdict

Answer 63

Motion for Directed Verdict (federal: Judgment as a Matter of Law): In Illinois, after the adversary has rested its case, this motion to direct the verdict can be filed and will be granted if the evidence so overwhelmingly factors the moving party.

Question 64

Motion for JNOV (renewed judgment as a matter of law)

Answer 64

Motion for J.N.O.V. (Renewed Judgment as a Matter of Law): Judgment notwithstanding the verdict after the verdict this motion for can be filed and will be granted if the evidence so overwhelming favored the moving party. This switches the verdict to the movant.