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Chapter 1 — The Attorney-Client Relationship -
I. Introduction - II. Creation of Attorney-Client Relationship
- III. Orienting Client
- [1.11] In General
- [1.12] Discussing Fees and Expenses
- Fee Arrangements
- [1.13] Fee for Reasonable Services
- [1.14] Fixed or Specific Fee
- [1.15] Retainer
- [1.16] Hourly Rate
- [1.17] Contingent Fee
- [1.18] Who Controls the Case?
- [1.19] When Plaintiff Is a Minor
- [1.20] Form of Contingency Fee Agreement
- [1.21] Enforceability of Contract for Contingency
- [1.22] Referral Fee
- [1.23] Payment of Fee by Third Party
- [1.24] Explanation of Costs and Expenses
- [1.25] Time Records
- [1.26] Commingling Funds
- [1.27] Common-Fund Doctrine
- [1.28] Attorneys Lien
- IV. Attorney’s Authority
- [1.29] In General
- [1.30] Authority in Litigation
- [1.31] Questioning Attorney’s Authority
- [1.32] Form of Motion To Question Authority
- [1.33] Who May Question Authority
- [1.34] Termination of Relationship by Death
- [1.35] Voluntary Withdrawal
- [1.36] Forms for Securing Withdrawal
- [1.37] Discharging Attorney
- [1.38] Association of Counsel
- [1.39] Substitution of Counsel
- [1.40] Forms for Substitution of Counsel
- [1.41] Duty to Non-Clients
- Chapter 2 — Development of the Case on Facts and Law
- I. Development of Factual Basis of Case
- [2.1] Introduction
- Necessity for Development of Facts
- [2.2] Determining Whether Claim or Defense Exists
- [2.3] Determining Whether Preparation of Case Is Warranted
- [2.4] Advising Client on Possibilities of Case
- Process for Obtaining Client’s Story
- [2.5] First Interview
- [2.6] Instruction of Client Regarding Activities, Preservation of Records, and Notices
- [2.7] Discussion with Client of Rights and Vulnerability
- [2.8] Explanation to Client of Proceedings Leading to Trial or Settlement
- [2.9] Additional Conferences with Client
- Additional Fact Gathering
- [2.10] Use of Client as Investigator
- Use of Professional Investigator
- [2.11] Necessity for Professional Investigator
- [2.12] Problems with Use of Professional Investigator
- [2.13] Need To Supervise Investigator Closely
- [2.14] Use of Witness Statements
- [2.15] Use of Photographs and Exhibits
- Development of Facts as to Damages
- [2.16] Doctors
- [2.17] Police Reports
- [2.18] Hospital Records
- [2.19] Continuation of Fact-Gathering Process
- [2.20] Checklist for Fact Gathering
- II. Development of Legal Basis of Case
- Necessity for Developing Legal Basis
- [2.21] Determination of Relief or Defense Available
- [2.22] Control of Proof at Trial
- [2.23] Elimination of Impractical Claims or Defenses
- [2.24] Determination of Parties and Joinder of Claims
- Methods for Developing Legal Basis
- [2.25] Analysis of Known Facts
- [2.26] Development of Research Memoranda
- Steps To Take After Theory of Case Is Established
- [2.27] Determine Whether To Proceed with Case
- [2.28] Determine Need for Further Investigation
- [2.29] Determine Need for and Tactics of Settlement
- [2.30] Establish Value of Settlement
- [2.31] Determine Whom and Where To Sue
- [2.32] Review File for Errors and Motions (Defense)
- [2.33] Confer with Client
- III. Choice of Remedy
- Chapter 3 — Settlement
- I. Introduction
- II. Evaluation of the Case for Settlement
- III. Negotiation Techniques
- IV. [3.12] Mediation
- V. Methods of Settlement
- VI. [3.16] Multiparty Settlements
- VII. [3.20] Structured Settlements
- VIII. [3.21] Enforcement of Settlements
- IX. [3.22] Conclusion
- X. Appendix — Forms
- Standard Settlements
- [3.23] Release
- [3.24] Stipulation To Dismiss
- [3.25] Order of Dismissal
- [3.26] Petition To Settle Claim
- [3.27] Affidavit of Attorney
- [3.28] Order Authorizing Settlement of Claim
- Multiparty Settlements
- [3.29] Motion for Finding of Good-Faith Settlement
- [3.30] Release — Fewer than All Tortfeasors
- [3.31] Stipulation — Fewer than All Tortfeasors
- [3.32] Order of Dismissal — Fewer than All Tortfeasors
- [3.33] Mutual Release — All Tortfeasors
- [3.34] Structured Settlements — Settlement Agreement
- Chapter 4 — Jurisdiction of the Subject Matter
- I. Introduction
- II. Jurisdiction of Illinois Courts and Administrative Tribunals
- [4.3] Illinois Judicial System
- Illinois Supreme Court
- [4.4] Composition
- [4.5] Jurisdiction
- [4.6] Supreme Court Rule 302
- [4.7] S.Ct. Rule 317
- [4.8] S.Ct. Rule 316
- [4.9] S.Ct. Rule 318(a)
- [4.10] S.Ct. Rule 315
- [4.11] Time To File Petition
- [4.12] Original Jurisdiction
- Appellate Court of Illinois
- [4.13] Jurisdiction
- [4.14] S.Ct. Rules 301 and 303
- [4.15] S.Ct. Rule 304
- [4.16] S.Ct. Rule 306
- [4.17] S.Ct. Rule 307
- [4.18] S.Ct. Rule 308
- [4.19] Power To Issue Orders
- Illinois Circuit Courts
- [4.20] Jurisdiction
- [4.21] Power To Issue Orders
- Divisions of Circuit Court
- [4.22] Authority and Creation
- [4.23] Effect of Filing in Wrong Division
- [4.24] Matters Assignable to Associate Circuit Judges
- [4.25] Amount in Controversy
- [4.26] Postjudgment Jurisdiction
- [4.27] Healing Art Malpractice Review Boards
- Illinois Court of Claims
- [4.28] Origin and Nature
- [4.29] Jurisdiction
- [4.30] Administrative Tribunals
- [4.31] Those Local in Nature
- [4.32] Jurisdiction
- [4.33] Applicable Judicial Review Provisions
- Illinois Workers' Compensation Commission
- [4.34] Jurisdiction
- [4.35] How Decisions Are Reviewed
- Illinois Commerce Commission
- [4.36] Jurisdiction
- [4.37] How Decisions Are Reviewed
- Environmental Protection Agency — Pollution Control Board
- [4.38] Jurisdiction
- [4.39] How Decisions Are Reviewed
- III. Jurisdiction of Federal Courts
- [4.40] Basis of Civil Jurisdiction of United States District Courts
- [4.41] Federal Question
- [4.42] Diversity of Citizenship
- [4.43] Bankruptcy Cases and Proceedings
- [4.44] Ancillary Actions
- [4.45] Pendent Actions
- [4.46] Supplemental Jurisdiction
- [4.47] Miscellaneous Bases of Federal Jurisdiction
- [4.48] Removal to Federal Court of Cases Filed in State Court
- [4.49] Absence of Federal Jurisdiction
- [4.50] Concurrent Jurisdiction of State and Federal Courts
- IV. [4.51] Priority of Jurisdiction Between Illinois Courts and Other State Courts
- V. Mandamus — Compelling Exercise of Jurisdiction
- Chapter 5 — Venue and Forum Non Conveniens
- I. Introduction
- II. Selection of Venue
- [5.3] Strategic Considerations
- Statutory Venue Under the Code of Civil Procedure
- [5.4] The Two Basic Venues
- Exceptions Based on the Nature of the Defendant
- [5.5] Nonresident Defendants
- [5.6] Fiduciaries
- [5.7] Corporations
- [5.8] Partnerships
- [5.9] Insurance Companies
- [5.10] Unincorporated Associations
- [5.11] Government Corporations
- [5.12] The State of Illinois and Its Officials
- Exceptions Based on the Type of Action
- [5.13] Local and Transitory Actions
- [5.14] Actions Relating to Real Property
- [5.15] Injunctions
- [5.16] Actions Against Estates
- [5.17] Actions for Libel
- [5.18] Dissolution of Marriage and Legal Separation
- Situations in Which Venue Is Jurisdictional
- [5.19] In General
- [5.20] Judgment by Confession
- [5.21] Venue of Other Actions
- [5.22] Attachment
- [5.23] Ejectment
- [5.24] Eminent Domain
- [5.25] Forcible Entry and Detainer
- [5.26] Garnishment
- [5.27] Habeas Corpus
- [5.28] Mandamus
- [5.29] Ne Exeat
- [5.30] Quo Warranto
- [5.31] Replevin
- [5.32] Foreclosure of Mortgages and Liens
- [5.33] Venue in Third-Party Actions
- III. Removal to a Different Venue
- [5.34] General Considerations
- [5.35] Transfer of Venue
- [5.36] Renewal and Review of Motion To Transfer Venue
- [5.37] Procedures for Transfer
- [5.38] Change of Venue and Substitution of Judge
- [5.39] Substitution of Judge for Prejudice or as a Matter of Right
- [5.40] Substitution for Interest of Judge in the Action
- [5.41] Change of Venue Due to Prejudice of or Undue Influence over Inhabitants of a County
- [5.42] “Prejudice” Defined
- [5.43] Renewal and Review of Motion for Change of Venue
- [5.44] Procedures for Change
- [5.45] Venue by Consent
- IV. Forum Non Conveniens
- [5.46] The Doctrine of Forum Non Conveniens
- [5.47] Interstate and Intrastate Forum Non Conveniens
- [5.48] Discretion of the Court
- [5.49] Burden of Proof
- [5.50] Factors To Consider
- Private Factors
- [5.51] The Plaintiff’s Right To Choose the Forum
- [5.52] The Availability of an Alternative Forum
- [5.53] Relative Convenience and Fairness
- [5.54] The Availability of Sources of Proof
- [5.55] The Need To View the Scene
- Public Factors
- [5.56] The Burden on the Court
- [5.57] The Connection Between the Action and the Chosen Forum
- [5.58] The Need To Apply Foreign Law
- [5.59] Factors Not To Consider
- [5.60] Procedural Aspects
- V. [5.61] Conclusion
- VI. Appendix
- [5.62] Motion for Transfer of Venue — Basic Form
- [5.63] Motion for Transfer of Venue — Codefendant Not Joined in Good Faith
- [5.64] Motion for Transfer of Venue — Situs of Property
- [5.65] Motion for Substitution of Judge as a Matter of Right
- [5.66] Motion for Substitution of Judge for Prejudice
- [5.67] Motion for Change of Venue — Prejudice of Inhabitants
- [5.68] Motion for Change of Venue — Undue Influence
- [5.69] Motion To Dismiss Based on Forum Non Conveniens — Interstate
- [5.70] Motion To Transfer Based on Forum Non Conveniens — Intrastate
- Chapter 6 — Limitations
- I. Introduction
- [6.1] Nature of Statutes of Limitation
- [6.2] Purpose and Court Attitudes
- [6.3] Use of the Bar of the Statute as a Defense Only
- Waiver of Limitations of the Bar
- [6.4] Personal Defense
- Waiver by Contract or Other Written Agreement
- [6.5] Extending the Period
- [6.6] Form for Contract Provision Waiving Statute of Limitations or Extending Time
- [6.7] Form for Deed of Trust Provision Waiving Statute of Limitations
- [6.8] Shortening the Period
- [6.9] General Form for Contract Provision Shortening Limitation Period
- [6.10] Form for Contract Provision Shortening Limitation Period in Construction or Service Agreement
- [6.11] Form for Bill of Lading Provision Shortening Limitation Period
- [6.12] Actions Without a Time Limitation
- II. Applicability of Statutes of Limitation
- In General
- [6.13] Proceedings in Law and Equity: Special Proceedings; Probate; Corporations; Adverse Possession
- [6.14] Administrative Proceedings
- Applicability to Governments
- [6.15] Federal Government
- [6.16] State and County Governments
- [6.17] Municipalities, Public Corporations, Special Governmental Districts
- When Illinois Limitation Statutes Govern
- [6.18] General Rule — Law of the Forum
- [6.19] Applicability of Foreign Statutes When Cause of Action Arises Outside of Illinois
- [6.20] Form for Allegations in Answer Setting Up Statute of Limitations in Nonresident’s Action on Cause Arising Outside Illinois
- [6.21] Federal Courts and Federal Statutes of Limitation
- Effect of Statute as Bar to Counterclaim, Cross-Complaint, and Defensive Matter
- [6.22] Application to Defense Only and When Affirmative Relief Is Sought
- [6.23] How Plaintiff as Counter-Defendant Must Plead
- [6.24] Form of Allegations in Motion to Dismiss Counterclaim
- [6.25] Form of Allegation in Answer to Counterclaim
- When Time Has Run but Statute Is Not a Bar
- [6.26] Cross Demands
- [6.27] Defensive Matter
- III. Beginning of the Statutory Period
- Statute Ordinarily Starts to Run upon Accrual of the Cause
- [6.28] When Liability Matures
- [6.29] Which Period Is Applicable
- [6.30] Computation of Time
- [6.31] Statute Runs Despite Plaintiff’s Ignorance of the Facts
- [6.32] Form for Pleading Fraud To Toll Statute
- [6.33] When Statute May Start To Run Before Accrual
- [6.34] Commencement of Period When Demand Is Necessary
- [6.35] Form for Allegations in Answer When Demand by Plaintiff Is Necessary
- Commencement of Period When Wrong Is Committed but Damage Results Later
- [6.36] General Rule
- [6.37] Exceptions
- IV. Suspension or Postponement of Statute
- Absence of Defendant from Illinois
- [6.38] General Rule
- [6.39] Form for Allegations in Complaint To Show Absence of Defendant from State When Cause of Action Accrued
- [6.40] Form for Allegations To Show Departure of Defendant from Illinois After Accrual of Cause of Action
- [6.41] Return of Defendant and Subsequent Concealment
- [6.42] Form of Allegation When Statute Tolled by Defendant’s Concealment
- Exceptions to the Rule When Constructive Service Permitted
- [6.43] Foreign Corporations
- [6.44] Form of Answer by Foreign Corporation
- [6.45] Nonresident Motorists
- [6.46] Resident Motorists
- [6.47] Proceedings in Rem Concerning Property in Illinois
- Personal Disabilities
- In General
- [6.48] Effect of Disability on Different Kinds of Actions
- [6.49] Effect of Time When Disability Exists
- Minors
- [6.50] General Rule
- [6.51] Form for Allegation in Complaint of Infancy of Plaintiff
- [6.52] Married Minors
- [6.53] Special Exceptions
- Insanity
- [6.54] General Rule
- [6.55] Form for Allegation in Complaint of Legal Disability To Toll Statute
- [6.56] Coverture
- Death
- [6.57] General Rule
- [6.58] Form for Allegations To Show Death of Owner of Claim To Extend Time To Sue
- [6.59] Form for Allegations To Show Extension of Time for Plaintiff To Sue Estate
- [6.60] War and Military Service
- Suspension Caused by Other Court Action or by Statute
- [6.61] Reversal of Judgment on Appeal
- [6.62] Form for Allegation in Complaint Relating to Reversal on Appeal
- [6.63] Injunction or Statutory Prohibition
- [6.64] Form for Allegation in Complaint To Show Suspension of Statute Because of Stay of Action
- [6.65] Pendency of Another Action or Proceeding
- [6.66] Suspension Caused by Other Court Action or Statute
- V. Interruption of Statute by Commencement of Proceedings
- [6.67] Action Is Begun When Complaint Is Filed
- [6.68] Effect of Defective Complaint on Running of Limitations Statute
- Amendments to Complaint — Relation Back to Original Filing
- [6.69] Change in Parties
- [6.70] Change in Cause of Action
- [6.71] Change in Remedy
- [6.72] Change in Theory
- [6.73] Third-Party Actions
- VI. Effect of Acknowledgement, Promise, or Part Payment
- Acknowledgment or Promise to Pay
- [6.74] When the Statute Is Revived
- [6.75] Form for Allegation in Complaint Setting Up Acknowledgment
- [6.76] Effect of Acknowledgment or Promise on Joint Obligors or Other Parties
- [6.77] Effect of Time of Written Promise or Acknowledgment
- Part Payment
- [6.78] In General
- [6.79] Form for Allegation To Show Part Payment
- [6.80] Settlement Negotiations
- VII. Pleadings
- [6.81] Necessity of Pleading the Statute
- [6.82] The Complaint
- Motion Under §§2-615 and 2-619(a)(5) When Bar of Statute Is Apparent from the Complaint Itself
- [6.83] In General
- [6.84] Form for Motion Under §2-615 When Bar of Statute Is Apparent from the Complaint Itself
- [6.85] Motion To Strike
- [6.86] Motion To Dismiss; Judgment on the Pleadings
- [6.87] Answer
- [6.88] General Form for Pleading Defense of Statute of Limitations
- [6.89] Form Specifying Statutory Sections for Pleading Defense of Statute of Limitations
- VIII. Notices with Effect of Limitations
- Chapter 7 — Pleadings
- I. Introduction
- [7.1] Scope of Chapter
- [7.2] Designation of Pleadings
- [7.3] Initiating the Lawsuit — The Complaint
- [7.4] Responding to the Complaint — The Answer
- [7.5] Asserting a Cause of Action by the Defendant — The Counterclaim and Third-Party Complaint
- [7.6] Responding to New Matter Raised in the Answer — The Reply
- [7.7] Changing the Pleadings — Amendments and Supplemental Pleadings
- II. Initiating the Lawsuit — The Complaint
- [7.8] Pre-Drafting Considerations
- Drafting the Complaint
- [7.9] Overview/Contents
- [7.10] Caption
- [7.11] Introductory Paragraph
- [7.12] Suggested Caption and Introductory Paragraph in Case with Individual Plaintiff Suing Individual Defendant
- [7.13] Body — Factual Allegations
- [7.14] Prayer for Relief
- [7.15] Drafting the prayer — generally
- [7.16] Prayer for relief in a personal injury case
- [7.17] Prayer for punitive damages
- [7.18] Signature
- [7.19] Verification
- [7.20] Incorporation of Documents by Reference; Exhibits
- General Considerations
- [7.21] Fact Pleading Required
- [7.22] Distinguished from “notice pleading”
- [7.23] Ultimate facts distinguished from conclusions of law — examples
- [7.24] Ultimate facts distinguished from evidence
- [7.25] Complaint as a Judicial Admission
- [7.26] Use of Separate Counts
- [7.27] Example of Complaint Setting Forth Separate Causes of Action in Separate Counts
- [7.28] Use of Alternative Counts
- Specific Considerations
- [7.29] Forum Allegations
- When a Party Is Not an Individual
- [7.30] When a party is a corporation
- [7.31] When a party does business under an assumed name
- [7.32] When a party is a partnership
- [7.33] When a party is an unincorporated association
- [7.34] When a party is a government entity
- When plaintiff brings suit through a representative
- [7.35] Suing through a guardian
- [7.36] Suing through an executor or administrator
- [7.37] Suing in a class action
- [7.38] When plaintiff is in doubt as to which defendant is liable
- Examples of Pleadings for Specific Causes of Action
- [7.39] Negligence
- [7.40] Willful and Wanton Misconduct; Intentional Torts
- [7.41] Pleading a Statute; Statutory Duty Distinguished from a Statutory Cause of Action
- [7.42] Healing Art Malpractice
- [7.43] Fraud
- [7.44] Breach of Contract
- [7.45] Filing the Complaint and Service of Process
- III. Responding to the Complaint
- Pre-Answer Considerations
- [7.46] Objecting to Jurisdiction
- Forum Considerations
- [7.47] Removal
- [7.48] Sample Form of Removal Petition
- [7.49] Transfer of Venue
- [7.50] Forum Non Conveniens
- Vacation of Defaults
- [7.51] Within 30 Days of a Default Judgment or Before Default Judgment Is Entered
- [7.52] More Than 30 Days After a Default Judgment
- [7.53] Obtaining Leave To Appear and an Extension of Time To Answer
- [7.54] Suggested Form: Leave To Appear, Extension of Time To Answer
- [7.55] Motions in Lieu of Pleadings
- [7.56] Demand for Bill of Particulars
- Drafting the Answer
- [7.57] Overview/Contents
- Addressing Allegations of the Complaint
- Denials
- [7.58] General denials
- [7.59] Specific denials; suggested forms
- [7.60] Insufficient knowledge to form a belief
- [7.61] Suggested form to state lack of sufficient knowledge
- [7.62] Suggested affidavit when stating insufficient knowledge
- [7.63] Allegations directed to a codefendant in multi-defendant litigation
- [7.64] Admissions
- [7.65] Raising Defenses
- [7.66] Drafting the Defense Portion of an Answer
- [7.67] Special Defenses in Contract Actions
- [7.68] Asserting Inconsistent Defenses
- Counterclaims
- [7.69] In General
- [7.70] Suggested Form
- [7.71] Signature
- [7.72] Verification
- [7.73] Third-Party Complaints
- [7.74] Filing
- IV. [7.75] Reply
- V. Amendments and Supplemental Pleadings
- Chapter 8 — Original Process and Appearance
- I. Introduction
- II. Summons and Other Forms of Original Process
- [8.3] In General
- [8.4] Summons
- [8.5] Summons Requiring Appearance on a Specified Day
- [8.6] Sample Form of Summons Requiring Appearance on a Specified Day
- [8.7] Small Claims Summons for Service by Mail
- [8.8] Summons Requiring Appearance Within 30 Days After Service
- [8.9] Sample Form of Summons Requiring Appearance Within 30 Days After Service
- Special Forms of Original Process
- [8.10] Attachment
- [8.11] Procedure for Attachment
- [8.12] Sample Form of Attachment Affidavit
- [8.13] Order of Attachment
- [8.14] Attachment of Watercraft
- [8.15] Attachment of Livestock
- [8.16] Attachment of Perishable Property
- [8.17] Garnishment
- [8.18] Sample Form of Affidavit for Garnishment (Nonwage)
- [8.19] Sample Form of Garnishment Summons (Nonwage)
- [8.20] Wage Deduction
- [8.21] Sample Form of Affidavit for Wage Deduction Order
- [8.22] Sample Form of Wage Deduction Notice
- [8.23] Sample Form of Wage Deduction Summons
- [8.24] Judgment by Confession
- Mandamus
- [8.25] Procedure
- [8.26] Sample Form of Mandamus Summons
- Ne Exeat
- [8.27] Procedure
- [8.28] Sample Form of Ne Exeat Order
- [8.29] Quo Warranto
- [8.30] Replevin
- [8.31] Sample Form of Notice of Hearing
- [8.32] Sample Form of Order for Replevin (Notice Served)
- [8.33] Sample Form of Order for Replevin (No Notice Served)
- [8.34] Original Actions in the Supreme Court
- [8.35] Time for Commencement of Action
- [8.36] Time for Service of Summons
- Duplicate Original Summonses; Alias Summonses; Summonses for Additional Parties
- [8.37] Duplicate Original Summonses
- [8.38] Alias Summonses
- [8.39] Summonses for Additional Parties
- [8.40] Amendment of Summons
- III. Service of Process
- [8.41] Jurisdiction over Defendant
- [8.42] Who Can Serve Process
- [8.43] Sample Affidavit of Foreign Service
- In-State Service on Individuals
- [8.44] In-Hand Service
- [8.45] Minors
- [8.46] Leaving Summons at Defendant’s Residence
- [8.47] Leaving Summons with Agent
- [8.48] Immunity from Service
- [8.49] Service Obtained by Fraud or Duress
- [8.50] When Service Is Impractical
- [8.51] In-State Service on Partnerships, Partners, and Voluntary Unincorporated Associations
- [8.52] In-State Service on Private Corporations
- [8.53] Domestic Private Corporations
- [8.54] Foreign Private Corporations
- [8.55] Nonresident Motorist Statute
- [8.56] Form of Notice of Service
- [8.57] Form of Affidavit of Compliance
- [8.58] Illinois Long-Arm Statute
- [8.59] Outside-the-State Service in General
- Outside-the-State Service in Particular Cases
- [8.60] Causes of Action Arising from the Transaction of Business in Illinois
- [8.61] Causes of Action Arising from Commission of a Tortious Act in Illinois
- [8.62] Causes of Action Arising from the Ownership, Use, or Possession of Illinois Real Estate
- [8.63] Causes of Action Arising from Insuring Persons, Property, or Risks Located in Illinois
- [8.64] Dissolution and Separate Maintenance Actions Arising During Maintenance of Illinois Matrimonial Domicile or Arising from Acts Committed in Illinois
- [8.65] Product Liability
- [8.66] Aircraft and Watercraft
- [8.67] Service by Publication
- [8.68] Procedure for Service by Publication
- [8.69] Form of Affidavit for Service by Publication
- [8.70] Form of Notice by Publication
- [8.71] Return of Service
- IV. Appearance
- V. Jurisdiction
- Chapter 9 — Interpleader
- I. Introduction
- II. The Statutory Vehicles: State and Federal
- Illinois Statutory Interpleader: 735 ILCS 5/2-409
- [9.4] The Illinois Statute, Venue, and Process
- [9.5] Scope
- [9.6] Procedure
- Federal Statutory Interpleader: 28 U.S.C. §1335
- [9.7] The Statute
- [9.8] Jurisdictional Prerequisite
- [9.9] Diversity Requirement
- [9.10] Adversity Requirement
- [9.11] Deposit Requirement
- [9.12] Venue
- [9.13] Process
- Federal Rule of Civil Procedure 22 Interpleader
- [9.14] The Rule
- [9.15] Jurisdiction
- [9.16] Diversity Jurisdiction
- [9.17] Federal Question Jurisdiction
- [9.18] No Deposit Requirement
- [9.19] Venue and Process
- [9.20] Statutory Interpleader vs. Rule Interpleader
- [9.21] Jurisdictional Differences
- [9.22] Venue and Process Differences
- III. [9.23] Evaluating the Case: The When and Why of Interpleader
- [9.24] The Institutional Petitioner
- [9.25] Banks/Savings and Loans
- [9.26] Insurance Companies
- [9.27] Surety Bonds
- [9.28] Liability Insurers
- [9.29] All Other Petitioners
- [9.30] Condemnation Proceedings
- [9.31] Owners of Storage Facilities
- [9.32] Brokerage Commissions
- [9.33] Inheritance Tax Claims
- [9.34] Landlord/Tenant
- [9.35] Securities and Commodities Brokers
- [9.36] Various and Sundry Other Applications of Interpleader
- IV. Pleading and Other Procedural Tips
- [9.37] The Basics
- [9.38] The Petition
- The Motion for Injunctive Relief
- [9.39] In General
- [9.40] Federal Court
- [9.41] State Court
- [9.42] Pending Lawsuits
- [9.43] The Answer
- [9.44] Jury
- [9.45] Attorneys’ Fees and Costs
- [9.46] Illinois Courts
- [9.47] Federal Courts
- [9.48] Statutory Interpleader
- [9.49] Rule Interpleader
- [9.50] Motion for Summary Judgment
- [9.51] Order
- [9.52] Appeal
- V. [9.53] Defending the Interpleader Action
- VI. Miscellaneous Considerations
- Chapter 10 — Third-Party Practice
- I. In General
- II. Some Pre-Litigation Aspects
- III. Compromise and Settlement
- [10.8] Strategy Under Former Law
- [10.9] Loan Receipt Agreements
- Good Faith Under the Contribution Act
- [10.10] Workers’ Compensation Settlements
- [10.11] Allocation in Loss of Consortium Claims
- [10.12] Basis for a Determination of Good Faith
- [10.13] Burden of Proof
- [10.14] Standing To Object to a Good-Faith Finding
- [10.15] How To Secure a Good-Faith Finding
- [10.16] Specificity of Release Documents
- IV. Some Litigation Aspects
- V. Forms
- Chapter 11 — Motions, Affidavits, and Orders
- I. Motions in General
- [11.1] Scope of Discussion
- [11.2] Nature and Use of Motions
- [11.3] Basic Statutory Sections and Court Rules
- [11.4] Procedural Guide — Filing and Service of Motion
- Considerations of Procedure
- [11.5] Motion as General Appearance
- [11.6] Time Within Which To Make Motion
- [11.7] When Motion Deemed To Be Made
- [11.8] What Motions Must Be Noticed
- [11.9] Form of Notice of Motion
- [11.10] Form of Basic Motion
- [11.11] Legibility
- [11.12] Caption
- [11.13] Relief Sought and Basis Therefor
- [11.14] Reference to and Incorporation of Other Matters on Which Motion Is Based
- [11.15] Signature
- [11.16] Address and Telephone Number
- [11.17] Certificate of Service
- [11.18] Serving and Filing Motions
- [11.19] Opposition to Motion
- [11.20] Hearing on Motion
- [11.21] Failure To Call Motions for Hearing
- [11.22] Renewal of Motions
- II. Affidavits
- III. Orders
- IV. Motions To Strike and Motions To Dismiss
- Nature and Use of Motion
- [11.40] Scope of Discussion
- [11.41] Summary of Statutory Provisions
- [11.42] Motions Under Code of Civil Procedure §2-615
- [11.43] Motions Under Code of Civil Procedure §2-619
- [11.44] Summary of Court Rules
- [11.45] Purpose of Motion To Dismiss
- [11.46] Effect of Motion as Admission
- [11.47] Waiver by Failure To File Motion
- [11.48] Practical Considerations in Determining Whether To Attack a Prior Pleading by Motion
- [11.49] Time for Filing and Proof of Service
- [11.50] Outline Form of Motion To Strike Complaint
- [11.51] Specification of Grounds
- [11.52] Grounds of Motion
- [11.53] Forms of Motions Attacking Complaints on Various Grounds
- [11.54] Skeleton Form of Motion Attacking Complaint and Several Causes of Action or Counts
- [11.55] Form of Specification That Complaint Is Insufficient in Law
- Form of Specification of Various Grounds Mentioned in Code of Civil Procedure §2-619
- [11.56] No Jurisdiction of Subject Matter
- [11.57] Lack of Legal Capacity To Sue or Be Sued
- [11.58] Another Action Pending
- [11.59] Former Adjudication
- [11.60] Statute of Limitations
- [11.61] Release or Discharge
- [11.62] Statute of Frauds
- [11.63] Minority or Other Disability
- [11.64] Form of Motion To Require More Definite Statement
- [11.65] Form of Motion To Strike (or Amend) Prayer for Relief
- [11.66] Form of Motion To Require Statement of Multiple Claims in Separate Counts
- [11.67] Setting Motion and Notice of Motion
- Ruling on Motion To Dismiss
- [11.68] Power of Court
- [11.69] Answer After Ruling
- V. Motions Relating to Untrue Pleadings
- Chapter 12 — New Parties
- I. [12.1] Scope of Chapter
- II. Substitution and Addition of New Parties
- [12.2] In General
- Substitution of Parties
- [12.3] Change of Interest or Liability
- [12.4] Death of a Party
- [12.5] Legal Disability of a Party
- [12.6] Trustees; Public Officers
- [12.7] Addition of New Parties by Amendment
- [12.8] Relation Back of a New Plaintiff
- [12.9] Relation Back of a New Defendant
- [12.10] Requirements Under Pre-Amendment 735 ILCS 5/2-616(d)
- [12.11] Original action was timely filed, and failure to join was inadvertent
- [12.12] Proper defendant or agent was served in wrong capacity
- [12.13] Defendant had knowledge of pending action
- [12.14] Cause of action grew out of same transaction or occurrence
- [12.15] Requirements Under Amended 735 ILCS 5/2-616(d)
- [12.16] Distinguishing Misnomers from Mistakes of Identity
- [12.17] Conversion of Respondent in Discovery
- Forms
- [12.18] Motion Suggesting Death of a Party
- [12.19] Motion To Appoint a Special Administrator
- [12.20] Motion To Dismiss for Failure To Substitute Party After Death of Plaintiff
- [12.21] Motion of Executor To Be Substituted as Plaintiff
- [12.22] Order Substituting Executor as Plaintiff
- [12.23] Motion for Leave To Add Additional Parties
- [12.24] Order Granting Leave To Add Additional Parties
- III. Proper Joinder
- IV. Guardians ad Litem
- [12.28] In General
- [12.29] When Appointment Is Necessary — Minors
- [12.30] Types of Proceedings in Which Appointment Is Necessary
- [12.31] Guardians for Adults Under Legal Disability
- Appointment and Powers
- [12.32] What Court
- [12.33] Who May Serve as Guardian ad Litem
- [12.34] Timing and Procedure for Appointment of Guardian ad Litem
- [12.35] Powers and Duties
- Forms
- Petition for Appointment of Guardian ad Litem
- Cook County
- [12.36] Petition for guardian of minor
- [12.37] Petition for appointment of guardian for disabled person
- [12.38] Outside Cook County
- Order Appointing Guardian ad Litem
- Cook County
- [12.39] Order appointing guardian of minor
- [12.40] Order appointing guardian ad litem for alleged disabled person
- [12.41] Outside Cook County
- [12.42] Answer of Guardian ad Litem
- V. Impleader
- [12.43] In General
- [12.44] Traditional Impleader Actions
- [12.45] Modern Impleader Actions: Skinner and the Contribution Act
- Specific Provisions of the Contribution Act
- [12.46] 740 ILCS 100/2(a)
- [12.47] 740 ILCS 100/2(b)
- [12.48] 740 ILCS 100/2(c) – 100/2(f)
- [12.49] 740 ILCS 100/3.5
- [12.50] 740 ILCS 100/4
- [12.51] 740 ILCS 100/5
- [12.52] Statute of Limitations for Contribution Actions
- [12.53] Contribution and the Implied Indemnity Doctrine
- [12.54] Statutory Provisions
- Forms
- [12.55] Motion for Leave To File Third-Party Complaint
- [12.56] Order Granting Leave To File Third-Party Complaint
- [12.57] Third-Party Complaint
- VI. Intervention
- [12.58] In General
- [12.59] Intervention as of Right
- [12.60] Unconditional Statutory Right To Intervene
- [12.61] Inadequate Representation
- [12.62] Adverse Effect of Distribution
- [12.63] Intervention by Leave of Court
- [12.64] When Public Interest Is Affected
- [12.65] Time for Intervention
- [12.66] Service and Complaint or Answer
- Forms
- [12.67] Motion To Intervene
- [12.68] Order Granting Leave To Intervene
- [12.69] Petition in Intervention
- Index
- List of Forms
- Lindsay Drecoll Brown
Lindsay Drecoll Brown
No bio available.
- Richard H. Chapman
Richard H. Chapman
Richard H. Chapman is a Member of Clark Hill PLC in its Chicago Office, where he concentrates his practice in labor and employment litigation. Mr. Chapman is also a member of the newly formed Clark Hill Digital Risk Management practice. He is a regular contributor to numerous legal and business publications, including IICLE® and Illinois Banker. Mr. Chapman has been chosen an Illinois Super Lawyer in business litigation, commercial litigation, and bankruptcy and workout law (commercial) for ten consecutive years. He has been named AV Preeminent by Martindale-Hubbel and was appointed by the Illinois Supreme Court to be a member and the secretary of the Illinois Supreme Court Committee on Pattern Jury Instructions in Criminal Cases. Mr. Chapman is a member of the Chicago Bar Association and has served on its Board of Managers (1994 – 1996). Mr. Chapman earned his B.A. with high distinction from the University of Illinois at Urbana-Champaign and his J.D. from Loyola University Chicago School of Law.
- Richard C. Huettel
Richard C. Huettel
Richard C. Huettel is a Partner with Cassiday Schade LLP in Chicago, where he concentrates his practice in all areas of civil litigation in the federal and state courts. He has written for IICLE®’s former handbook LAW AT A GLANCE: THE LEGAL ASSISTANT’S GUIDE TO THE LAW. Mr. Huettel is a member of the American, Illinois State, and Chicago Bar Associations. He received his B.A. from the University of Michigan and his J.D. from DePaul University College of Law.
- Andrew J. Keyt
Andrew J. Keyt
Andrew J. Keytis a Partner at Heyl, Royster, Voelker & Allen, P.C., in Peoria, where he focuses on governmental law and toxic torts. Throughout his career, he has represented corporate entities, small businesses, governmental entities, and private individuals. He is a member of the Peoria County and Illinois State Bar Associations and the Abraham Lincoln Court. Mr. Keyt received his B.S. from Illinois State University and his J.D. magna cum laude from Northern Illinois University School of Law.
- Adria East Mossing
Adria East Mossing
Adria East Mossing is a Partner at Mossing & Navarre, LLC, in Chicago, where she focuses her practice on personal injury and medical malpractice. Mossing has served as President of the Women’s Bar Association of Illinois (2016 – 2017). She has been chosen by Leading Lawyers Illinois as one of the Top 10 Women Leading Lawyers in Illinois in personal injury and medical malpractice and by Illinois Super Lawyers as a Top 100 Illinois Super Lawyer, and she was also named as a Top 50 Women Illinois Super Lawyer. Mossing received her B.A. from Northwestern University and her J.D. from DePaul College of Law, where she was the Notes and Comments Managing Editor for the DePaul Law Review.
- Sean P. Murray
Sean P. Murray
Sean P. Murrayis a Partner at Taxman, Pollock, Murray & Bekkerman, LLC, in Chicago, and concentrates his practice in plaintiff personal injury and wrongful death. Murray is on the Illinois Trial Lawyers Association Board of Managers and has been chosen as a Top 100 Illinois Super Lawyer. He earned his B.A. cum laude from Western Illinois University and his J.D. from Loyola University Chicago School of Law.
- James P. Navarre
James P. Navarre
James P. Navarreis a Partner at Mossing & Navarre, LLC, in Chicago, where he focuses on personal injury and medical malpractice. Navarre is a member of the Illinois Trial Lawyers Association, has been named to the Leading Lawyers Illinois list for personal injury and medical malpractice, and has also been recognized as an Illinois Super Lawyer. He received his B.S. from the University of Illinois and his J.D. cum laude from Loyola University School of Law.
- David A. Nilles
David A. Nilles
David A. Nilles, a Partner with Matushek Nilles & Sinars, L.L.C., in Chicago, practices in the areas of products liability and mass toxic tort defense. He is a member of the Illinois State and Chicago Bar Associations, the Illinois Association of Defense Trial Counsel, and Phi Delta Phi International Legal Fraternity. Mr. Nilles received his B.S. from the University of Illinois and his J.D. from The John Marshall Law School.
- James L. Oakley
James L. Oakley
James L. Oakley is a Partner with the law firm of Thompson Coburn LLP in Chicago, where he concentrates his practice in litigation. Mr. Oakley was named an Illinois Super Lawyer Rising Star (2009 – 2015) and is a member of the Chicago and American Bar Associations. He received his B.A. from the University of Pennsylvania and his J.D. from the University of Wisconsin Law School.
- Heather F. Pfeffer
Heather F. Pfeffer
No bio available.
- Stephen D. Phillips
Stephen D. Phillips
Stephen D. Phillips is the Managing Partner with Phillips Law Offices in Chicago, where he focuses his practice on personal injury and wrongful death. Mr. Phillips is on the Executive Committee of the Illinois Trial Lawyers Association (ITLA) and received the Association’s President’s Award in 2005. He has also received an AV Preeminent Rating from Martindale-Hubbell. Mr. Phillips is a Past President of ITLA (2013 – 2014), served on the Illinois State Bar Association’s Board of Governors (1995 – 1996), and has been an adjunct professor at Loyola University Chicago. He received his B.A. from the University of Iowa and his J.D. from Loyola University Chicago School of Law.
- Julie L. Pustilnik
Julie L. Pustilnik
Julie L. Pustilnikis an attorney at Taxman, Pollock, Murray & Bekkerman, LLC, in Chicago, where she focuses her practice on plaintiff’s personal injury trial work. Pustilnik has been listed in the Chicago Daily Law Bulletin’s 40 Under Forty and as a Law Bulletin Media’s Leading Lawyers Emerging Lawyer. She also received the Chicago-Kent College of Law Outstanding Young Alumni Award. Pustilnik graduated magna cum laude from the University of Illinois at Urbana-Champaign, and she received her J.D. from Chicago-Kent College of Law.
- Terrence M. Quinn
Terrence M. Quinn
Terrence M. Quinn is an attorney with Phillips Law Offices, in Chicago, where he concentrates his practice in personal injury. He is a member of the Illinois Trial Lawyers Association Board of Managers, the American Association of Justice, and the Illinois State Bar Association. Quinn graduated from Kutztown University of Pennsylvania and received his J.D. from Loyola University Chicago School of Law.
- Timothy J. Ritchey
Timothy J. Ritchey
Timothy J. Ritchey is a Partner at Peck Bloom, LLC, in Chicago, where he concentrates his practice in the areas of guardianship, will and trust litigation, fiduciary litigation, elder law, and estate and special-needs planning. Mr. Ritchey is on the Probate Practice Committee of the Chicago Bar Association, the Young Alumni Council of the IIT Chicago-Kent College of Law Alumni Board, and the professional board of the Center for Disability and Elder Law. He is also a member of the Illinois State Bar Association and the National Academy of Elder Law Attorneys. Mr. Ritchey was named an Illinois Super Lawyers Rising Star in 2012 – 2014, was named one of the 40 Illinois Attorneys Under 40 to Watch in 2014, and was honored with the IIT Chicago-Kent College of Law 2014 Young Alumni Award. He received his B.A. from the University of Illinois at Urbana-Champaign and his J.D., with honors, from IIT Chicago-Kent College of Law.
- Kevin R. Sido
Kevin R. Sido
Kevin R. Sido is Of Counsel at Hinshaw & Culbertson LLP, in Chicago, where he focuses his practice on civil litigation with an emphasis in construction law and alternative dispute resolution. He is a mediator and arbitrator with ADR Systems Chicago and the American Arbitration Association and a member of both the Society of Illinois Construction Attorneys and the Illinois State Bar Association. Sido earned his B.A. from the University of Illinois, where he received the Bronze Tablet Award and was a member of Phi Beta Kappa, and his J.D. from the University of Illinois College of Law.
- Douglas M. Sinars
Douglas M. Sinars
Douglas M. Sinars is a Partner at Sinars Slowikowski Tomaska LLC, in Chicago, where he concentrates his practice in civil litigation, medical malpractice, products and premises liability claims, environmental and occupation exposures, and toxic tort claims. Mr. Sinars is a member of the Illinois Association of Trial Defense Counsel and the Chicago Bar Association and is licensed in Illinois, Missouri, and New York. He received his B.A. from the University of Notre Dame and his J.D. from DePaul University College of Law.
- Megan S. Slowikowski
Megan S. Slowikowski
Megan S. Slowikowski is a Partner with Matushek, Nilles & Sinars, L.L.C., in Chicago. She concentrates her practice on products liability and toxic torts claims. Much of her practice involves asbestos litigation. Ms. Slowikowski was a speaker at the 2014 Forum for Environmental and Toxic Tort Issues conference and is a volunteer for Women Everywhere: Partners in Service Project, Inc. She is a member of the Chicago Bar Association and the IIT Chicago-Kent Alumni Association. Ms. Slowikowski received her B.S. from the University of Illinois at Urbana-Champaign and her J.D., with honors, from IIT Chicago-Kent College of Law.
- David A. Sorensen
David A. Sorensen
David A. Sorensen is a Senior Litigation Attorney at the Law Offices of Edward J. Kozel in Chicago and concentrates in the areas of professional malpractice (legal and medical/healthcare). Mr. Sorensen is a member of the Leading Lawyers Network in the areas of medical malpractice and defense law and professional malpractice defense law (2011 – 2012). He was also chosen as an Illinois Super Lawyer in 2012 and 2013 in the area of malpractice defense litigation. Mr. Sorensen received his J.D. from Indiana University Maurer School of Law.
- Marc A. Taxman
Marc A. Taxman
Marc A. Taxmanis a Founding Partner of Taxman, Pollock, Murray & Bekkerman, LLC, in Chicago, where he focuses on person injury, wrongful death, medical negligence, transportation negligence, premises liability, and trial practice. He has been practicing law for 35 years and been named an Illinois Super Lawyer and Illinois Leading Lawyer, and he was recognized in Best Lawyers in America. Taxman received his B.S. from the University of Illinois at Urbana-Champaign and his J.D. from IIT Chicago-Kent College of Law.
- Tobin J. Taylor
Tobin J. Taylor
Tobin J. Taylor is a Shareholder with Heyl, Royster, Voelker & Allen, P.C., in Chicago, where he concentrates his practice in litigation. Taylor is a member of the Illinois State Bar Association and a member of the Illinois Association of Defense Trial Counsel. He received his B.S. magna cum laude from Bradley University and his J.D. from Washington University School of Law.
- Panos T. Topalis
Panos T. Topalis
Panos T. Topalis is Managing Director at Tribler Orpett & Meyer, P.C., in Chicago, where he concentrates his practice in civil litigation. Topalis is a member of the Illinois State Bar Association, the Counsel for Litigation Management, and the Hellenic Bar Association, where he was Past President. He received his B.S. from Northern Illinois University and his J.D. from IIT Chicago-Kent College of Law.
- John F. Watson
John F. Watson
John F. Watson is a Partner at Craig & Craig, LLC, in Mattoon, where he focuses on civil defense litigation. Watson is first vice president of the Illinois Association of Defense Trial Counsel, was the editor-in-chief for the IDC Quarterly, and has received an “AV Preeminent” rating from the Martindale-Hubbell Peer Review. He earned his B.S. from Bradley University and his J.D. with honors from The John Marshall Law School, where he served as an associate editor for The John Marshall Law Review.
- Julie A. Webb
Julie A. Webb
Julie A. Webb is a Partner with Craig & Craig, LLC, in Mount Vernon, where she concentrates her practice in defense of personal injury, workers’ compensation, and occupational disease claims. She is on the Illinois Supreme Court Rules Committee and has been named an Illinois Leading Lawyer. Additionally, Webb is a court-approved certified mediator in the Second and Fourth Judicial Circuits. She received her B.S. from the University of Illinois and her J.D. from Southern Illinois University School of Law.
- Kenneth F. Werts
Kenneth F. Werts
No bio available.
Civil Practice (Illinois): Opening the Case (ARCHIVED 2012 EDITION)
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