USA – ILLINOIS Trends and Developments Contributed by: Michael Forde, Brian O’Meara, Ellie Carey and John Ransford, Forde & O’Meara LLP
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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 differ - ences 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 judg - ment) 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 “sub - stantial ruling” – either because the moving party was not yet part of the case or had not yet filed its appear - ance (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.
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