 | Term | Definition |
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Complaints: |
IL is a liberal fact pleading state. |
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In IL, complaint MUST |
contain facts constituting a CoA. BUT, in IL pleadings are construed liberally to do justice |
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Complaint quirks: |
Verified complaints: complaint that is sworn to by someone w/ personal knowledge of facts alleged. In IL, complaints need NOT be verified but may be verified and if they are, every subsequent pleading must be verified as well; Complaints base don a written instrument: copy of that written instrument must be attached as an exhibit to the complaint; Punitive damages: complaint may not initially contain ANY request for punitive damages, if you want punitives you must convince judge at hearing that punitive relief is warranted, if so, can amend complaint to add prayer; Trial by jury: in IL, if P seeks primarily monetary relief, there is right to trial by jury IF P demands trial by jury in complaint |
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Answers: The Answer MUST do 1/3 of these things: |
1) Precisely admit all allegations that are true. 2) Precisely deny all allegations that are NOT true. 3) OR say: "I have insufficient info from which to admit or deny" IF SO, MUST attach affidavit swearing don't know and still don't know after due inquiry |
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Facts that aren't denied in Answer |
are ADMITTED. (does not admit legal conclusions) |
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Mandatory counterclaims in IL?? |
NO |
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Affirmative defenses: |
Assumes all allegations in complaint are true and nonetheless asserts some affirmative matter that still defeats the claim. Answer MUST contain that defense or else it is WAIVED!!! |
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Trial by Jury |
if complaint seeks primarily $$ relief, right to trial by jury, D may seek trial by jury by demanding IN ANSWER |
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Amendments:General rule |
liberal! Encourage amendments to complaints therefore,, amendments shall be liberally granted on just and reasonable terms to serve merits. If ? is: should amendment be granted answer is YES, unless amendment involves issue about SoL. THEN do SoL analysis |
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Relation back to conform to SoL |
Am to complaint to add claims or parties which are NOT timely but which related back in time to date of an original timely filed complaint to conform to SoL. Ex: A sues B, complaint filed in timely manner. While A's claim pending, SoL runs. THEN, realize extra claims or wants to bring in new party. Asks for Am to related back to original timely complaint |
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Rqrmt for relation back of CLAIMS |
new claims relate back if they derive from same transaction or occurrence as original timely filed claim. SAMENESS! |
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Rqrmts for relation back of PARTIES |
much more difficult, need ALL 4 of these: (KISS) 1) Knowledge: brand new party must have knowledge of claims such that it would not be prejudiced by being sued 2) Identity mistake: original named D was a mistaken identity; 3) Service of process timeframe: new party must acquire that knowledge w/in period of reasonable diligence allowed for service of process AND can and does extend beyond running of SoL; 4) Sameness: claims agst brand new party must derive from SAME transaction or occurrence as original timely filed claim |
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Tested SoLs: |
Personal Injury Tort claims: 2 yrs from discovery of personal injury tort claim in which to file that tort claim. Can then serve w/ process after period of reasonable diligence . Extension of limitations period: if P under 18 y/o OR is otherwise disabled from filing, P gets 2 yrs from date disability is removed in which to file. |
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General JoinderPolicy in IL |
Liberal and permissive. Generally, encourage joinder of claims/parties to a single lawsuit. NO compulsory joinder rules (this is what permissive means). NO such thing as failure to join. |
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Joinder of Claims |
May join as many claims as you have against a D, regardless of whether there is a connection between those joined claims |
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Joinder of Parties: |
in IL, may join parties SO LONG as the claims involving those parties derive from the same transaction or occurrence OR at least the same series of transactions or occurrences (BUT look for necessary party that might raise due process issue) |
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Impleader |
D may implead a brand new claim against a brand new 3rd party IF that 3rd party may be liable to D for all or part of D's same liability to D (look for: indemnity or contribution) |
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Interpleader |
Insurance company as holder of common fund may file lawsuit as P and interplead each and every rival claimant to its common fund. Ex: holder of ins policy dies, there are rival claimants to funds |
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Intervention: |
act of a nonparty in moving to intervene as a party in an ongoing lawsuit. Grant or deny? As of right: intervenor has right to intervene IF it has an interest which will be adversely affected by lawsuit and NOT PROTECTED by parties VS Permissive: can always seek this as alt. motion DISCRETIONARY! Judge has discretion to grant permissive intervention IF there is a commonality of issues between those in ongoing lawsuit and those effecting intervenor |
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Class Actions Definition |
a class action is an action in which a named P represents a class of commonly situated absent plaintiffs |
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Fundamental requirement for class action |
Tremendous judicial involvement (3 steps) |
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Judge must grant class certification requirements |
(5 requirements- NAACP). 1) Numerosity: means class must be so numerous that joinder of all would be impracticable (40+ is numerous); 2) Adequacy: named P AND class counsel must fairly and adequately protect the class's interest; 3) Appropriateness: class action device must be an appropriate method of adjudicating multiple claims; 4) Commonality: must be common issues of fact OR law that pertain to class. 5) Predominance: common issues MUST predominate over individual issues Judge must also order notice reasonably calculated to apprise interested class members Judge must approve of any settlement of class action! |
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Material is Discoverable IF 2 things true |
1) Method of discovery must be proper AND 2) Material sought must be w/in proper scope of discovery |
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Proper METHODS of Discovery in IL: (STEP 1) |
Automatic prompt disclosure: in actions where amt in controversy is $50,000 or less, each side MUST automatically disclose (w/o request) 1) All factual and legal bases for claims; 2) All potential Ws; 3) All relevant docs; 4) Damages computation; 5) Relevant insurance coverage |
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Depositions |
only discovery device can use on non-party |
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Discovery depo |
all depos presumed to be for discovery purposes UNLESS they are labeled as evidence depo. Only 3 hours! And may be used at trial ONLY to impeach OR as admission OR in cts discretion if deponent unavailable at trial |
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Evidence depo |
useable at trial as evidence. NO time limit. May be used at trial for ANY purpose IF: 1) deponent is unavailable OR 2) a healthcare professional *must be labeled as evidence depo* |
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Pre-trial disclosure of testifying witnesses: |
a party may serve an interrogatory requesting disclosure of another parties witnesses. 3 types of testifiers to keep separate: 1) Full Controlled testifying experts: traditional experts retained by a party for testimony. Disclosure requires full qualifications and full report of opinions. 2) Summary Independent testifying experts: NOT retained by a party. i.e. treating physicians OR independent experts. Disclosure requires names. 3) Topic Lay testifying witnesses: disclosure requires just topics of testimony |
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Duty to supplement |
in IL, each side has automatic ongoing obligation to update its prior disclosures w/in a reasonable time of discovering any new info. |
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Proper SCOPE of Discovery: (STEP 2) |
Material w/in scope of discovery IF it is: relevant, and not privileged. Relevance: relevant to any part of any claim or defense AND need not be admissible at trial. Privileged? Material that is privileged is NOT DISCOVERABLE. (work product) |
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Work product |
material that has been prepared for litigation and NOT in ordinary course of business. Mental impressions of an attorney: watch out! Thoughts, strategies: NEVER DISCOVERABLE, absolutely privileged. Other types? Freely discoverable (this is diff from fed rules) |
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Motion to Substitute Judges |
each side has absolute right to get rid of judge one time must file BEFORE the judge resolves any substantial issue (any issue going to merits of case) |
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Plaintiff's Motion for Voluntary Dismissal w/o Prejudice: (to refile later on) |
P has absolute right to take 1 voluntary dismissal. Must file before any hearing on merits. UNLESS D files a cc. This extinguishes right to file this motion!!. P MAY refile lawsuit UP TO date the SoL runs OR up to 1 year after dismissal (whichever longer) |
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Defendant's 2-615 Motion Attacking Complaint |
Pre-answer motion for facial attacks on complaint. If you answer complaint, waive right to file this motion. Motion to strike: Allegations as insufficient OR to dismiss for failure to state factual allegations which constitute a CoA SO, Cts may not consider material outside of the complaint |
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Defendant's 2-619 Motion to Dismiss the Complaint: |
May be filed in answer AND move to dismiss complaint based upon some affirmative matter outside of complaint that defeats claim. Resolving this motion MAY and often MUST consider material outside of complaint |
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Motion for Summary Judgment: |
These ?s tend to be very fact intensive. Trials are for resolving genuine issue of material fact. Mtn for SJ will be granted IF there is NO genuine issue of material fact for trial so that judgment becomes proper as a matter of law |
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Motion for Directed Verdict (judgment as a matter of law): |
In trial, after adversary rests case, this motion may be filed and will be granted if the evidence SO OVERWHELMINGLY favors moving party. Often will be denied and jury renders verdict |
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Motion for J.N.O.V. (renewed judgment as a matter of law) |
After verdict, this motion may be filed and will be granted IF evidence SO OVERWHELMINGLY favored the moving party |
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Motion for New Trial: |
(fall back motion). Easier to get this than motion for JNOW will be granted in cts discretion IF 1) there were errors at trial affecting the parties subst. trial rights. Always colossal errors AND 2) if verdict was merely against manifest weight of evidence |
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Motion to Vacate Default Judgment: |
Default judgment means: Ds will suffer a default judgment IF they fail to respond to complaint in a timely manner (w/in 30 days of service, 60 days if you waive service). Mtn to v.d.j. must be filed w/in 30 days of judgment- if so liberally granted. |
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Petition for Relief from a Judgment: |
extraordinary remedy for judgments tainted by fraud or perjury. Must show ALL of following (MEND): 1) Merit: must show merit to claim or defense 2) Equity: demands relief from judgment 3) New facts: brand new facts have come to light that cast doubt on prior judgment 4) Due diligence: despite d.d. you were unable to discover new facts until after judgment |
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