USA – ILLINOIS Trends and Developments Contributed by: Michael Forde, Brian O’Meara, Ellie Carey and John Ransford, Forde & O’Meara LLP
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 Chan - cery 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 includ - ing Breach of Contract, Professional Malpractice (other than legal or medical), Fraud (other than legal or medical), Consumer Fraud, Breach of War - ranty, Statutory Action, Other Commercial Litiga - tion, and Retaliatory Discharge; and • “Personal Injury/Wrongful Death”, with subcat - egories 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/Wrong - ful 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 law - yers 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 Divi - sion G.A.O. 16-2. The possibility of multiple parties using their substi - tution 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, espe - cially 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 agree - ment 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 sys - tem 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.
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