Pleadings (complaints and answers)

Question 1

Illinois is a what state for pleadings?

Answer 1

Illinois is a LIBERAL FACT pleading state

Question 2

In Illinois, complaints must contain what?

Answer 2

facts that constitute a cause of action but in IL pleadings are construed LIBERALLY to CONSTRUE Justice and serve merits

Question 3

Verified complaints

Answer 3

complaint sworn to by someone with personal knowledge of facts alleged. In IL complaints need not to be verified, but may be verified and if are verified, every subsequent pleading must be verified as well.

Question 4

Complaints based on a written instrument

Answer 4

a copy of the instrument must be attached to complaint as an exhibit or be stricken as invalid

Question 5

Punitive Damages

Answer 5

complaint may NOT initially contain any request for punitive damages, if want punitive damages, must convince judge in hearing they are warranted which judge may give leave to amend later on.

Question 6

Medical Malpractice

Answer 6

P must include affidavit swearing that qualified health care professional has or will w/i 90 days certify that complaint has merit, or will be struck as improper

Question 7

When must P demand a trial by jury/?

Answer 7

P must demand in complaint itself not after

Question 8

When is a right to jury?

Answer 8

the constitutional right is when it is a legal claim, a claim which seeks primary monetary damages.

Question 9

Answers

Answer 9

1) D must fairly and precisely respond to each allegation by admitting those as true or denying those not true OR
2) insignificant information to which admit or to deny. If insignificant evidence , must swear by affidavit that they really do not know
3) if D wants a jury trial D must demand trial by jury in answer initially or it is waived.

Question 10

Amendments general rule

Answer 10

Amendments in IL shall be liberally granted just and reasonable terms to serve the merits

Question 11

What is the relation back definition

Answer 11

Amendments to complaint which not timely but much relate back to time earlier timely filed complaint to conform to SOL.

Question 12

An amendment adding a new CLAIM relates back IF

Answer 12

new claim derives from the SAME TRANSACTION OR OCCURRENCE as earlier timely filed claim

Question 13

An ammendment adding a new PARTY relates back if (2) things are true

Answer 13

1) new party must relate back to SAME TRANSACTION OR OCCURRENCE to filed claims AND
2) Brand New party must have acquired KNOWLEDGE that BUT FOR MISTAKE in name, it would have sued w/i period of REASONABLE diligence allowed for service of process

Question 14

What is the statute of limitations for personal injury tort claims

Answer 14

2 years from DISCOVERY of PI tort claim in which to file claim.

Question 15

What is the statute of repose

Answer 15

an absolute time limit on filing claims that runs from occurrence and not discovery of claim. IT is a complete bar time.
- IL medical malpractice is 4 years, absolute time period runs from OCCURRENCE not discovery of claim.

Question 16

2 exceptions to statute of repose

Answer 16

1) Fraudulent concealment

2) Disability

Question 17

Extension of limitations period for fraudulent concealment

Answer 17

court has power to equity extend limitations period IF D does something to forestall P from discovering claim.

• D must make an AFFIRMATIVE ASSERTION or act that forestalls P from discovering claim
• silence is not enough

Question 18

Extension of limitations period for Disability

Answer 18

IF P is under 18 years old or otherwise disable, P gets 2 years in which to file beginning on date when DISABILITY ENDS

Question 19

if a claim has both legal claims and equitable claims and a demand for jury is given on the legal right which one happens first

Answer 19

the legal claim is heard in front of jury. The findings of facts by the jury is held in the bench trial for the equity claim in front of the judge

Question 20

for fraudulently concealing facts under the statute of repose defense what must happen

Answer 20

must make AN AFFIRMATIVE ASSERTION that something is or what it is
- for doctors usually need continuing care for a duty to disclose

Question 21

what is the usual rule for doctors when dealing with statute of repose and concealment of facts

Answer 21

usually need continuing care for a duty to disclose to apply

Question 22

is silence enough to raise defense of fraudulent concealment of facts to toll statute of repose

Answer 22

NO. need an AFFIRMATIVE ASSERTION or act or concealment on part of D that lulls the P or induces him to delay filling or discovering claim

Question 23

if in an answer a D has insignificant information to swear on something what must they do

Answer 23

must swear by affidavit which insignificant information

Question 24

does a D need to make the affirmative defense in an answer

Answer 24

YES.

- must plead in answer or waived

Question 25

if a D wants a jury trial when must they ask for one

Answer 25

in the answer or waived

Question 26

what is SOL in IL for personal injuries

Answer 26

2 years date of discovery

Question 27

what is SOL in IL for property damage

Answer 27

5 years

Question 28

request for admission

Answer 28

in IL a party may serve a request for admission of any relevant facts or of the genuineness of any relevant document.

• the request must deal with facts; a request to admit legal conclusions will be stricken from the motion
• All facts that are not denied in 28 days are deemed admitted unless court finds good cause to relieve the party from admission

Question 29

request for admission: what does the request for admission only apply to

Answer 29

FACTS not legal conclusions

Question 30

requests for admission: does it apply to facts

Answer 30

YES

Question 31

request for admission: does it apply to legal conclusions

Answer 31

NO, only facts, a request to admit legal conclusions will be stricken from the motion

Question 32

request for admission: time frame to deny or admitted

Answer 32

all facts that are no denied in 28 days are deemed admitted UNLESS the court finds good cause to releive the party from admission

Question 33

in IL how are motions to amend pleadings treated

Answer 33

LIBERALLY GRANTED

Question 34

in IL when can a P amend complaint to assert new claim after SOL

Answer 34

1) original complaint was timely filed and
2) claim asserted in amended complaint arises from same transaction or occurrence as the claim asserted in the original complaint

Question 35

what does IL require for pleadings of a fraudulent claim

Answer 35

IL, unlike federal courts, requires a party to plead facts supporting claim. Facts are those statements that are neither so particularized as to be irrelevant or verbose, nor so generalized as to simply be elements of a particular cause of action.

• Furthermore, claims of fraud must be plead with SPECIFICITY