Hon. Janet Adams Brosnahan, (Ret.), senior mediator and arbitrator at ADR Systems, recently published a two-part series in the Chicago Daily Law Bulletin. Her articles, Stagnant case orders show confounding spike in Law Division and As DWPs escalate in Law Division, no perfect remedy exists, analyze the precipitous rise of dismissal for want of prosecution (DWP) orders by the Circuit Court of Cook County Law Division. To read Judge Brosnahan’s articles in full if you are not a Chicago Daily Law Bulletin subscriber, click here.

In part 1, Judge Brosnahan considers explanations for the rise of DWP orders, which, if numbers keep to their current trend, will have increased by well over 70% since 2022 by the end of this year. She notes, for example, that the Illinois Supreme Court’s Time Standards for Case Closure in the Illinois Trial Courts burdens the Circuit Court of Cook County to a greater extent than other Illinois circuit courts.

“The time standards are uniform statewide,” she wrote, “but the Cook County Law Division has a far greater volume of complex cases like medical negligence actions. Because complex cases are likely to require 36 months or more for completion, the standards are more burdensome in Cook County than elsewhere.”

Whatever the reason, Judge Brosnahan says, the very real result, on the whole, is detrimental.

“A DWP order increases the length of time before a case reaches final disposition. It also adds to litigation costs,” she wrote. “As Cook County strives to meet case closure benchmarks, there is less room for discretion in the management of cases — especially the most complex ones. There is less tolerance for unavoidable delays and less recuperative downtime for lawyers and judges between trials. In the current environment, there is more urgency, more anxiety, more mental and physical health stressors, and more DWPs. The time standards were launched with laudable goals in mind … Now it is time to evaluate the efficacy of this new management tool to consider if it has unintended consequences that impede the fair and efficient delivery of judicial services.”

In part 2, Judge Brosnahan reviews the various ways litigants can respond to a DWP order—and the time implications of those often-necessary responses. A DWP order is interlocutory, not dispositive, she explains, so a plaintiff may refile the DWP’d action within one year of the entry of the DWP order or until the applicable statute of limitations expires, whichever is longer. 735 ILCS 5/13-217. A plaintiff may also file a motion to vacate the DWP order and reinstate the case, which would make it as though the court never entered a DWP order.

Judge Brosnahan cited Stacken v. Stratford Moes Inc., 2021 IL App (1st) 191982-U to illustrate how a DWP order and a litigant’s response to it extend the life of such a case. “The DWP resulted in a two-year delay,” she explained after recounting the procedural history of the litigation after the DWP order, “but it could have been even longer had the plaintiff waited to file the motion or refile the case.”

Judge Brosnahan’s underlying point: the parties suffer prejudice and cannot fully recover from the entry of a DWP. In a climate of mounting DWP orders, this is no small thing.

“DWP orders do not promote efficiency or reduce the court’s workload,” she ultimately concludes. “The results are often counterproductive, including generating motion practice, delaying resolution on the merits and increasing costs. The rights to reinstate, refile and/or appeal do not allow a complete recovery from a DWP. While a judge should not ignore or excuse a case’s unjustified stagnation, the authority to DWP should be exercised conservatively. The trend of escalating DWP orders in the Law Division should be reversed.”

To read Judge Brosnahan’s articles in full if you are not a Chicago Daily Law Bulletin subscriber, click here.

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Hon. Janet Adams Brosnahan, (Ret.) served 21 years in the Circuit Court of Cook County. She has expertise in settling a variety of disputes, particularly those relating to medical negligence, toxic tort and product liability issues. Judge Brosnahan also has extensive experience in labor, employment and contract matters. Her warmth and in-depth knowledge make her a well-respected and sought-after neutral.

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