Publications

Section Newsletter Articles on Civil Practice

Price v. Phillip Morris: Back from the dead? The appellate court finds the trial court exceeded the scope of its Section 2-1401 review By Hon. Russell W. Hartigan and Jessica L. Fangman Civil Practice and Procedure, July 2014 On April 29, 2014, the Illinois Appellate Court decided Price v. Phillip Morris, and found the trial court exceeded the scope of its section 2-1401 review.
Illinois court finds default judgment proper only after notice and repeated failure to comply By Hon. Russell W. Hartigan and Griffen Thorne Civil Practice and Procedure, May 2014 On February 11, 2014, the Illinois Appellate Court decided Locasto v. City of Chicago, reversing a trial court’s grant of default judgment against the defendant, which consistently failed to meet discovery deadlines.
The Supreme Court provides an opportunity for a cautionary reminder By Patricia A. Zimmerman Tort Law, April 2014 In Country Preferred Insurance Company v. Whitehead, the Illinois Supreme Court held that a contractual time limitation for bringing an uninsured benefits demand for arbitration was not contrary to public policy.
Limits on common law privileges and self-critical analyses By Jeffrey A. Parness Civil Practice and Procedure, February 2014 The recent case of Harris v. One Hope United, Inc. did not elaborate on any differences between General Assembly deference in privilege extension or establishment.
Closing argument: Some topics to consider By John M. Stalmack Civil Practice and Procedure, January 2014 A useful article to guide you when crafting your closing arguments.
New guidelines on privileged marital communications By Jeffrey A. Parness Civil Practice and Procedure, December 2013 In the recent case of People v. Trzeciak, Justice Theis was "troubled" by the majority's definition of confidentiality, which she found to constitute “a new exception” not found in statute. What was the new exception and will it apply in civil as well as criminal cases?
Personal representatives and special administrators in tort claims: There is a difference By Patrick M. Kinnally Civil Practice and Procedure, December 2013 Should civil procedure rules should bar prima facie claims where a party dies in the tempest of a garden-variety personal injury claim? Or, frankly, what is the difference between a “special administrator” and a “personal representative”?
Traveling employee theory does not extend to employer tort liability By Jason G. Schutte Civil Practice and Procedure, December 2013 The traveling employee concept from workers compensation cases cannot be utilized to hold an employer liable for its employee’s tortious conduct through respondeat superior
All that snow: Barber v. G.J. Partners, Inc. By Hon. Daniel T. Gillespie and Rachel Fugett Civil Practice and Procedure, September 2013 Premise liability for a fall with injuries after snow was shoveled was at the heart of the case of Barber v. G.J. Partners, Inc.
Costs: an imbroglio for trial courts and practitioners By Patrick M. Kinnally Civil Practice and Procedure, May 2013 What constitutes an allowable "cost" is not subject to any bright line test. In large part, this uncertainty stems from Illinois cost statutes that do not say what "costs" are recoverable.
Railroads gain more ground: Illinois appellate court reverses $700,143.70 jury verdict after Choate decision By Hon. Russell W. Hartigan and Christina Faklis Civil Practice and Procedure, May 2013 Immediately after the Illinois Supreme Court decided Choate v. Indiana Harbor Railroad Co.,  it used its supervisory authority and ordered the First District Appellate Court to vacate its prior ruling in McDonald v. Northeast Illinois Regional Commuter Railroad Corp.
What are “allowable costs” in trial practice—2013 By Patrick M. Kinnally Civil Practice and Procedure, May 2013 In his article published over a decade ago (and reprinted in this issue), the author argued that our trial judges and trial lawyers needed a rule that actually reflected what costs were allowable in trials and summary judgment motions litigation in state court. The currency of that argument abides today.
Minimal property damage as evidence of non-injury By John B. Kincaid Civil Practice and Procedure, December 2008 Despite the youth of the century, the Twenty-First has already spawned six cases from four Appellate Court districts dealing with defense efforts to establish lack of plaintiff’s injury by showing minimal vehicle contact.
The mailbox rule does not apply to refiling of a voluntarily dismissed complaint By Kimberly L. Dahlen Civil Practice and Procedure, December 2007 In Wilson v. Brant, 374 Ill.App.3d 306, 869 N.E.2d 818 (1st Dist. 2007), a unanimous First District Appellate Court determined that the mailbox rule does not apply to the commencement of any action, specifically in this case, where a plaintiff refiled a complaint after taking a voluntary dismissal.
It’s not just paperwork: Insuring due process in the service of summons By Patrick M. Kinnally Civil Practice and Procedure, October 2007 When discord arises requiring litigation, equity requires the playing field to be even for both the plaintiff and the defendant.
The saga of admissibility of vehicular post-collision photographs continues By Stephen C. Buser Civil Practice and Procedure, March 2007 The First District Appellate Court decided nearly four years ago in Dicosola v. Bowman, 342 Ill.App. 3d 530, 794 N.E. 2d 875, 276 Ill.Dec.625 (1st Dist. 2003) that vehicular post-collision photographs were not admissible in automobile accident litigation absent expert testimony.
Illinois law governs products case with complicated conflict of law analysis By Kathryn R. Hoying Civil Practice and Procedure, February 2007 The recent case of Townsend v. Sears Roebuck and Co., involves a conflict of laws analysis regarding strict liability, punitive damages and limits (“caps”) on noneconomic damages between Illinois and Michigan.
Substitution of judge as of right By Timothy W. Kelly Tort Law, March 2006 In Aussieker v. The City of Bloomington, the Fourth District Appellate Court addressed the issue of whether each individually named plaintiff in a multiple party lawsuit is entitled to one motion for substitution of judge as of right pursuant to section 2-1001(a)(2) of the Code of Civil Procedure, as opposed to one substitution for the group of plaintiffs as a whole.
How to handle an employer’s group health plan lien By Robert T. Park Civil Practice and Procedure, January 2006 As a result of an accident, the plaintiff was injured. He brings a suit in circuit court for negligence. His damages include medical bills that were paid for by his employer’s group health insurance plan. After pursuing discovery, including depositions, the case settles. The health plan asserts a lien for the amount it paid. How should the lawyer handle the employer’s group health plan lien?
Pre-trial dismissal based on other affirmative matter: An open invitation has its limits By David H. McCarthy Civil Practice and Procedure, January 2006 An examination of the use and abuse of section 2-619(a)(9) and how its misuse might be controlled.  
Rescission/Restitution: Be careful what you ask for, you may get it By John B. Kincaid Civil Practice and Procedure, November 2005 The subject of this article involves the doctrine of contract rescission and the court’s application of restitution following the order of rescission.
Does a lending institution have a duty to a potential guarantor of a promissory note to advise him that his future business partners are financially shaky and may not repay the loan? By John B. Kincaid Civil Practice and Procedure, February 2004 In a recent case which must have sent shudders through the banking community, the First District Appellate Court held that such conduct is actionable.
Negligent infliction of emotional distress in Illinois—Rickey v. CTA revisited By John B. Kincaid Civil Practice and Procedure, February 2002 In the 18 years since Rickey v. Chicago Transit Authority was decided by the Illinois Supreme Court, recovery for emotional distress due to negligence has undergone some significant evolution.
Costs: an imbroglio for trial courts and practitioners By Patrick M. Kinnally Civil Practice and Procedure, October 2000 What constitutes an allowable "cost" is not subject to any bright line test. In large part, this uncertainty stems from Illinois cost statutes that do not say what "costs" are recoverable.
The deliberative process evidentiary privilege (Civil Practice Committee 1/5/00) By John B. Kincaid Civil Practice and Procedure, August 2000 In People Ex. Rel. Birkett v. City of Chicago, the City raised a "deliberative process privilege" to prevent the disclosure of future plans to improve and enlarge the O'Hare Field facility.