Tort Defense Outline

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Author: Helaine Heydemann, Edwards Wildman Palmer LLP
Last updated: November 2011

Introduction

Although litigation is fluid and continuous, this outline divides the stages of litigation into 5 sections for ease of reference. The first three stages deal with pretrial litigation, the fourth discusses the trial itself, and the fifth stage deals with post-trial appeals.

The first stage discusses where to file pleadings and what to include in pleadings. The second stage deals with strategies for managing written and oral discovery. The third stage involves how to end litigation before trial with a dispositive motion. The fourth stage details how to admit evidence at trial. The fifth stage discusses interlocutory appeals and appeals from final judgments.

Stage 1 - Jurisdiction and Pleadings
Stage 2 - Discovery
Stage 3 - Summary Judgment
Stage 4 - Trial
Stage 5 - Appeal

This document contains hyperlinks to public websites to access the information cited. The websites are listed below:

First Stage: Jurisdiction and Pleadings

Sources of Law

Five sources of law govern Illinois civil procedure: the United States Constitution, the Illinois Constitution, the Illinois Code of Civil Procedure, the Illinois Supreme Court Rules, and Illinois Rules of Evidence.

Jurisdiction

  • General: Common Law Bases
    • Consenting to jurisdiction,
    • Being present in Illinois when served with process,
    • Conducting business or completing a series of transactions in the state, or
    • Being an Illinois resident or domiciliary.
  • Specific: Long Arm Statute (735 ILCS 5/2-209) - If general jurisdiction is not available the Illinois code supplies fourteen bases for specific jurisdiction, which include:
    • Transacting business within the state,
    • Committing a tortuous act within the state, or
    • Owning, using, or possessing real property within the state.

Venue

  • General: venue is proper in any county where any defendant resides or the county where the cause of action arose. (735 ILCS 5/2-101)
  • Corporation: Illinois corporations are residents in any county in which they do business. Venue is proper in any county for non-Illinois corporations. (735 ILCS 5/2-102)
  • Objections to Venue: objections to venue must be made before the defendant answers the complaint or the objection is waived.

Forum Non Conveniens (Illinois Supreme Court Rule 187)

A trial court has discretion to transfer a case from one county to another within Illinois for the convenience of a party. See Daudy v. Union Pacific, 207 Ill. 2d 167 (2003).

Statute of Limitations and Statute of Repose

Statute of Limitations time periods differ depending on the cause of action from one year to twenty years, e.g., (735 ILCS 5/201 et seq.)

  • One year: libel, slander, certain claims against municipalities,
  • Two Years: personal injury, products liability, contracts,
  • Four Years: contract for sale of goods (U.C.C.)
  • Twenty Years: certain real property actions.

Medical Malpractice

Tolling (prevents the time period from running)

  • Minors: the statute of repose is for a period of 8 years and does not toll, but the claim must be brought before the person is 22 years old. (735 ILCS 5/13-212)
  • Disability: neither the statute of limitations nor statue of repose begins to run until after the disability is removed provided that the disability was present at the time of injury. (735 ILCS 5/13-212). Disabilities include insanity, inability to manage one's own affairs, and military service. They are not physical disabilities, but rather usually relate to a plaintiff's ability to recognize an injury and be present to bring a claim.

Complaint

  • Fact pleading jurisdiction. (735 ILCS 5/2-601)
  • Every complaint must contain a prayer for relief. (735 ILCS 5/2-604) But punitive damages may not appear in the complaint. Only after making a pretrial motion may a plaintiff them amend his complaint to include punitive damages. (735 ILCS 5/2-604.1)
  • Jury Demand: if a plaintiff wants a jury trial, he must demand it in the complaint. If a defendant wants a jury trial, he must demand it in his answer. Otherwise, trial by jury is waived. (735 ILCS 5/2-1105)
  • Pleading in the alternative is allowed.
  • Verified Pleadings: a pleading may, but need not be, verified by oath of a party. If a pleading is verified, every subsequent pleading (answer, reply, amended complaint) must also be verified. (735 ILCS 5/2-605)
  • New Claims: a party may change the allegations or add new allegations. See Porter v. Decatur Memorial Hosp., 227 Ill. 2d 343 (2008). If the statute of limitations has run, a claim may still be added if the new claim "relates back" or has a sufficiently close relationship to the subject matter and time of the matter that led to the same injury. (735 ILCS 5/2-616(b))
  • Dismissal for Lack of Diligence: if a plaintiff fails to exercise reasonable diligence in serving a defendant before the statute of limitations runs, the complaint should be dismissed with prejudice. (Il S. Ct. Rule 103(b))

Answer/Counterclaim

  • Answers must specifically admit, deny, or claim lack of knowledge for each allegation. Except for damages calculations, any allegation not denied is admitted. (735 ILCS 5/2-610)
  • The counterclaim should be made part of the complaint and must be designated as a counterclaim. (735 ILCS 5/2-608)
  • Relation Back: a counterclaim that could otherwise be barred may be alleged if it relates sufficiently to a claim that was properly filed within the statute of limitations. (735 ILCS 5/2-616(d))

Third Parties

Affirmative Defenses

Parties may claim as many defenses as they desire. (735 ILCS 5/2-613(a)) Any defense should be plainly set forth in the answer or reply.

Illinois Rule of Procedure lists various defenses, including (735 ILCS 5/2-613(d)):

  • Payment,
  • Release,
  • Satisfaction,
  • Comparative fault,
  • Failure to mitigate,
  • Fraud,
  • Estoppel, and
  • Laches.

Special Considerations

Damages Cap and Tort Reform

The Illinois Supreme Court struck down Public Act 94-677 "Tort Reform" which had set the maximum damages at $500,000 for medical malpractice cases. See Lebron v. Gottlieb, 237 Ill. 2d 217 (2010); Best v. Taylor Mach. Works, 179 Ill. 2d 367 (1997).

Informed Consent

There are four elements to a malpractice action based on lack of informed consent:

  • The physician had a duty to disclose the material risks,
  • The physician failed to disclose or inadequately disclosed the risks,
  • As a direct and proximate result of the failure to disclose, the patient consented to treatment, they would not have otherwise consented to, and
  • The plaintiff was injured by the proposed treatment. See Davis v. Kraff, 405 Ill. App. 3d 20 (1st Dist. 2010).

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Second Stage: Discovery

Written Discovery

  • File a written discovery and deposition notice with your appearance.
  • Interrogatories are governed by Ill. Sup. Ct. R. 213.
    • File a maximum of 30 interrogatories.
    • Standard interrogatories for motor-vehicle, matrimonial, and medical malpractice cases are available online. (Ill. Sup. Ct. R. 213)
  • Requests for documents are governed by Ill. Sup. Ct. R. 214.
  • Resist the temptation to ask for too many details in written discovery.
  • Limit written discovery to identifying witnesses, statements, medical treatment, lost income, insurance coverage, relevant documents, and items of special damage.

Depositions

Depositions are governed by Ill. Sup. Ct. R. 212. There are two kinds: discovery depositions and evidence depositions.

What to do before a deposition:

  • Outline depositions in detail.
  • Walk through entire accident in preparing your deposition questions.
  • Deposition is the blueprint for preparing cross-examination.
  • All cross-examination questions should be cross-referenced to a deposition question and answer.

In a deposition, get complete background information:

  • Driver's license number,
  • Medical history,
  • Family doctor,
  • Prior treatment by chiropractors,
  • Medications, corrective lenses,
  • Prior injuries; establish continuing complaints and medical treatment as a result of prior injuries,
  • Subsequent injuries,
  • Prior accidents,
  • All hospitalizations,
  • Prior diagnostic tests, x-rays, MRI's, CT's,
  • Photographs depicting plaintiff at any time after the accident, vacations, trips, etc.,
  • Obtain information with respect to insurance companies providing coverage to plaintiff including health insurance coverage,
  • Complete employment and educational background including all worker's compensation claims.

Depositions for slip and fall cases:

  • For the defendant, questions should be prepared in such a way to deal with the elements of plaintiff's case.
  • For the plaintiff, questions should not only lead to testimony that would meet your burden but should address any affirmative defenses the defendant may have.
  • Consider the de minimis defense, lack of notice, lack of proximate cause.
  • "What caused you to fall?"
  • "How do you know you stepped on the debris?"
  • Plaintiff should be prepared to respond to the above questions.

Depositions for Auto Accidents:

  • Record details concerning speed, distance, and impact.
  • If intersection accident, plaintiff should be asked whether they maintained speed as she approached and entered intersection; defendant should be asked whether they were paying attention or were crossing against the light.
  • Question plaintiff about all observations made concerning defendant's vehicle and its operation, including speed, braking, and evasive action.
  • Question defendant about the conditions, including whether the road was wet, whether it was dark out, whether any street lights were not functioning at the time of the accident. Defendant should also not whether plaintiff had earphones in and was distracted listening to music.
  • Question plaintiff about all of their specific allegations in the complaint; question defendant about their affirmative defenses.
  • What did plaintiff hear your client say at the scene?; What did defendant hear your client say at the scene?
  • Consider sudden stop information

All parties should try to attend the opposing parties' depositions if possible.

Subpoenas for Medical Records

  • Be aware of HIPAA rules and privacy obligations.
  • Mental health records require special authorization. (740 ILCS 110/10(d))
  • Parties may also request physical and mental examinations. (Ill. Sup. Ct. R. 215)

Contours of Rule 213 Disclosures

  • Make sure that foundation witnesses are also included in disclosures (e.g., a record librarian for medical records, court reporters for possible completion of impeachment issues). We suggest detailed Rule 213 disclosures. Remember, police officers and lay witnesses may have opinions on some aspect of an accident, including intoxication and speed.
  • Rule 213 disclosure requirements do not apply to cross-examinations on an opposing party's opinion witness. See, e.g., Maffet v. Bliss, 328 Ill. App. 3d 562 (4th Dist. 2002) (party did not have to disclose journal articles that it intended to use in cross-examining the opposing party's opinion witness); Skubak v. Lutheran Gen. Health Care Sys., 339 Ill. App. 3d 30 (1st Dist. 2003).
  • A witness may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion rather than new reasons for it; the testimony must be encompassed by the original opinion. See Scassifero v. Glaser, 333 Ill. App. 3d 846 (2nd Dist. 2002).
  • A party has an ongoing duty to supplement answers or responses to written interrogatories whenever new or additional information subsequently becomes known including recent treatment. See Doe v. Chand, 335 Ill. App. 3d 809 (5th Dist. 2002).
  • A party impliedly consents to his physician releasing any of the medical information related to the mental or physical condition that the patient has placed at issue in the lawsuit. The patient's implicit consent, however, is limited only to the release of his medical information pursuant to the methods of discovery authorized by the Supreme Court Rules. A patient does not consent to ex parte conferences between the physician and the patient’s legal adversary. See Petrillo v. Syntex Labs., Inc., 148 Ill. App. 3d 581 (1st Dist. 1986).

Requests to Admit

Requests to admit are governed by Ill. Sup. Ct. R. 216.

  • These are very powerful tools in litigation.
  • They are time sensitive: "28 Day" Rule. If a party fails to respond to these requests, they are deemed admitted.
  • They are underutilized.
  • Difficult to prepare and to answer.
  • Clients, not attorneys, must sign and swear to responses to requests to admit.
  • Consider following up deposition testimony with requests to admit.
  • Consider using a request to admit to avoid having to establish evidentiary foundations for documents at trial.

The necessity and reasonableness of medical services and the reasonable costs of the medical services received are proper subjects for requests to admit. A responding party to a request has a good faith obligation to make an effort to obtain answers to the requests, which would include information in the control of the attorney, insurance company, or other representatives. See Szczeblewski v. Gossett, 342 Ill. App. 3d 344 (5th Dist. 2003).

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Third Stage: Summary Judgment

Source of Law

Procedure

  • A defendant may, at any time, move with or without supporting affidavits for a summary judgment in his or her favor as to all or any part of the relief sought against him or her. (735 ILCS 1005(b))
  • But must be filed before the last date, if any, set by the trial court for the filing of dispositive motions. (Ill. Sup. Ct. Rule 191(a))
  • The nonmoving party must be given notice and a reasonable time in which to respond to the motion.

Standard

  • A Motion for Summary Judgment will be granted if the moving party can show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (735 ILCS 5/2-1005(c))
  • If a material fact is in dispute summary judgment will not be granted.
  • Trial court does not decide a question of fact but, rather, determines whether one exists; thus, a court cannot make credibility determinations or weigh evidence in deciding a summary-judgment motion. See Coole v. Central Area Recycling, 384 Ill. App. 3d. 390 (4th Dist. 2008).
  • A defendant moving for summary judgment may succeed by showing either (1) that an element of the dispute must be resolved in his favor or (2) by showing that there is insufficient evidence to support the plaintiff’s case. See Nedzvekas v. Flung, 374 Ill. App. 3d 618 (1st Dist. 2007).

Special Consideration

  • Remember that the court may grant summary judgment on only one issue, such as whether the defendant is liable, but proceed to trial to settle another genuine issue of material fact, such as the question of damages. (735 ILCS 5/2-1005(c))

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Fourth Stage: Trial

Sources of Law

Most of the information below is taken from the Illinois Rules of Evidence. To view the full text of the rules, go to the Illinois Rules of Evidence on the Illinois Supreme Court website.

Motions in Limine

These motions are used to exclude irrelevant evidence from trial. Examples of irrelevant evidence:

  • Reference to alleged statutory violation if there is no evidence that the statutory violation was a proximate cause of the accident,
  • Evidence of liability insurance,
  • Settlement offers,
  • Payment of medical expenses by a third party,
  • Evidence of financial condition,
  • Character evidence to prove conduct in conformity with that character (evidence of habit, however, is relevant).

Motions in Limine are also used to exclude otherwise relevant evidence whose probative value is substantially outweighed by the danger of:

  • Unfair prejudice,
  • Confusion of the issues,
  • Misleading the jury,
  • Considerations of undue delay, waste of time, and needless presentation of cumulative evidence.

Presentation of Plaintiff's Case

Cross-examination of plaintiff's witnesses:

  • Limited to the subject matter of the direct examination and matters affecting the credibility of the witness
  • Leading questions are allowed during cross-examination and should be used in order to direct the witness's testimony.

Impeaching plaintiff's witnesses:

  • The credibility of a witness may be attacked or supported by any party.
  • Credibility may  be attacked or supported by evidence in the form of opinion or reputation, but the evidence may refer only to character for truthfulness or untruthfulness, and evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.
  • One can also impeach the witness by calling into question the witness's ability to perceive.

You can impeach through evidence of a criminal conviction only if the crime

  • Was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or
  • Involved dishonesty or false statement regardless of the punishment, unless
  • In either case, the court determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice.

Note also that criminal convictions are not admissible if more than 10 years has elapsed since the date of conviction or the release of the witness from confinement, whichever is later.

Motion for Directed Verdict (725 ILCS 5/2-1202)

At the close of evidence and before the case is submitted to the jury, any party may move for a directed verdict.

The court may:

  • Grant the motion,
  • Deny the motion, or
  • Reserve its ruling and submit the case to the jury.

If the court denies the motion or reserves its ruling on it, the motion is waived unless the request is renewed in the post-trial motion.

Presentation of Defendant's Case

Lay Witnesses

With lay witnesses, testimony should be based on things actually perceived by the witness. Testimony in the form of opinions or inferences is limited to those opinions or inferences which are:

  • Rationally based on the perception of the witness, and
  • Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue, and
  • Not based on scientific, technical, or other specialized knowledge.

Expert Witnesses

Expert witnesses may be used if their scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. An expert witness can offer an opinion or inference that embraces an ultimate issue to be decided by the trier of fact. But the witness may be required to disclose the fact or data underlying his or her opinion during cross-examination.

Testimony in the form of an opinion or otherwise may be admissible if:

  • The opinion is based on a new or novel scientific methodology or principle; the proponent of the opinion has the burden of showing the methodology or principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.
  • Witness bases the opinion on facts or data perceived by the expert; facts or data made known to the expert at or before the hearing; inadmissible facts or data, if they of a type reasonably relied upon by experts in the particular field in forming opinions or inferences. See Wilson v. Clark, 84 Ill. 2d 186, 196 (1981) (adopting Federal Rule of Evidence 703 and 705).

Documents

Documents must be authenticated.

Methods of authentication:

  • Testimony of witness with knowledge,
  • Nonexpert opinion on handwriting,
  • Comparison by trier or expert witness,
  • Distinctive characteristics and the like,
  • Voice identification,
  • Public records or reports,
  • Ancient documents or date compilations if - in such condition as to create no suspicion concerning authenticity, in a place where it, if authentic, would likely be, and in existence 20 years or more at the time it is offered
  • Process or system, and
  • Methods provided by statute or rule.

Some documents are self-authenticating, including:

  • Domestic public documents under seal,
  • Domestic public documents not under seal,
  • Foreign public documents,
  • Certified copies of public records,
  • Official publications from a public authority,
  • Newspapers and periodicals,
  • Trade inscriptions and the like,
  • Documents acknowledged by a notary public or other officer authorized to take acknowledgements,
  • Commercial paper and related documents,
  • Presumptions under statutes, and
  • Certified records of regularly conducted activity.

Original documents are required, but duplicates are admissible unless:

  • A genuine question is raised as to authenticity of the original, or
  • In the circumstances it would be unfair to admit the duplicate in lieu of the original.

Objections

For the purposes of appeal, a timely objection must be made when inadmissible evidence is presented to the court.

Jury Instructions

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Fifth Stage: Appeal

Sources of Law

Subject Matter of Appeals

Time Requirements

Based on the statutes involved in a given case, meeting the appropriate deadlines in which to file is jurisdictional and mandatory.

Notice of Appeal

  • Appellant must file a Notice of Appeal specifying the judgment or part thereof or other orders appealed from and the relief sought from the reviewing court. (Ill. Sup. Ct. Rule 303(b)(2))
  • Generally the notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from, or, if a timely post-trial motion directed against the judgment is filed, within 30 days after the entry of the order disposing of the last pending post-judgment motion. (Ill. Sup. Ct. Rule 303(a)(1))
  • The entry of an order occurs when the trial court signs the order and files it with the court clerk, even if the parties do not have actual notice of the order’s filing. The absence of a docket entry is irrelevant. See Childers v. Kruse, 297 Ill. App. 3d 70 (2d Dist. 1998).
  • When notice of appeal is filed and served by a party, any other party may join in the appeal, appeal separately, or cross-appeal by filing a notice of appeal, within 10 days after service upon him or her, or within 30 days from the entry of the judgment or order being appealed, or within 30 days of the entry of the order disposing of the last pending post-judgment motion, whichever is later. (Ill. Sup. Ct. Rule 303(a)(4))
  • Proof of service must be filed with the Notice of Appeal (Ill. Sup Ct. Rule 303(c))
  • The party filing the Notice of Appeal or an amendment as of right, must, within 7 days, file a notice of filing with the reviewing court and serve the required copies of the notice. (Ill. Sup. Ct. Rule 303(c))

The Record on Appeal and Briefs

Illinois Supreme Court Rules 321 to 327 regulates the manner of obtaining the record on appeal.

A docketing statement, transcript of record, report of proceedings, briefs, and other matters prescribed by the Rules must be presented to the court of review.

  • The filing of the Record must occur within 63 days of the filing of the notice of appeal unless an extension is granted. (Ill. Sup. Ct. Rule 326)
  • The Appellant must file his or her briefs 35 days after filing the Record. (Ill. Sup. Ct. Rule 343(a))
  • The appellee has 35 days from the Appellant’s brief filing to file his or her own brief in response or cross-appeal. (Ill. Sup. Ct. Rule 343(a)-(b))
  • The appellant has 14 days from that filing in which to file a reply brief. (Ill. Sup. Ct. Rule 343(a))
  • If there is a cross-appeal, the original Appellant shall have 35 days from the due date of the single brief filed by the cross-appellant to file his or her Reply Brief. (Ill. Sup. Ct. Rule 343(a)-(b))
  • The cross-appellant may file a reply brief confined strictly to replying to those arguments raised on the cross-appeal within 14 days after the due date of the appellant’s reply brief. (Ill. Sup. Ct. Rule 343(a)-(b))
  • The reviewing court may extend or shorten the time for any of these filings. (Ill. Sup. Ct. Rule 343(c))
  • Many avenues are open to counsel to obtain extensions of time for filing the required documents on appeal within the time specified in the rules. See Fielding v. Fielding, 58 Ill. App. 2d 279 (3d Dist. 1965).

Petitions for Leave to Appeal

Illinois Supreme Court Rules 315-320 governs a petition for leave to appeal to the Supreme Court. Most such appeals are up to the discretion of the Supreme Court to hear.

Unless a timely petition for rehearing is filed in the Appellate Court, a party seeking leave to appeal must file the petition for leave in the Supreme Court within 21 days after entry of the judgment of the Appellate Court, or within the same 21 days file with the Appellate Court an affidavit of intent to file a petition for leave, and file the petition within 35 days after the entry of such judgment. (Ill. Sup Ct. Rule 315(b))

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