This article was originally published in the Illinois Bar Journal and can be accessed here.

Beginning July 1, 2022, the Illinois supreme court imposed Time Standards for Case Closure for lawsuits filed on or after Jan. 1, 2022 (the “Time Standards”).[1] The Supreme Court determined that an outer limit of 36 months is appropriate for 98 percent of cases to reach completion. These Time Standards are among the most common complaints from practitioners in the Law Division. Law Division cases are lawsuits with damages in excess of $50,000 and tend to be more complex than municipal and/or arbitration cases. Most lawyers do not realize that the Time Standards were created based upon historic benchmarks consistently experienced by attorneys practicing in the Law Division in Cook County.

This article outlines how attorneys can implement strategies at each stage of the litigation process to comply with the Time Standards and bring your case to a successful resolution.

Service of Process

Service of process is the first step where a lawyer can gain time. Illinois courts may find that a delay of four to five months between the filing of the complaint and subsequent service is too long, justifying a dismissal. Prompt service “buys” months of time so that written and oral discovery can be completed within the Time Standards. Under Illinois Supreme Court Rule (ISCR) 103(b), a plaintiff has many months to serve process, but it is generally advantageous to serve process early. In Cook County, trial attorneys are no longer dependent upon the county sheriff to accomplish proper service due to recent changes in the Illinois Code of Civil Procedure on service of process.[2] These changes allow a plaintiff to serve process on defendants without the need to bring a motion to appoint a special process server. Remember, too, that service is now available by many different means, including mail, email, social media, and texting.[3]

Service of process can be tricky when you have an out-of-state or a foreign defendant, but most defendants can be served within 30 days. When it comes to foreign service of process, the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents is the usual standard. Compliance with the Hague Convention is required in the U.S. and other countries that have adopted it. Service under the Hague Convention can take months, but you may be able to avoid its strictures if the foreign defendant is a corporation with a wholly owned U.S. subsidiary. The Hague Convention also allows service by postal mail, email, and social media under appropriate circumstances. If you have a foreign defendant, you should review service-of-process options available under the Hague Convention before you file your lawsuit.

Some cases present an opportunity for resolution after service of process. If the issues presented within the lawsuit are centered on the defendant’s liability exposure or financial considerations, the case can be mediated at a very early stage. This is also true of cases where privacy considerations are paramount. Serving process early gives you time to assess whether alternative dispute resolution is the better path for your case.

Many courts have local circuit court rules that discuss or require mediation. If you are not aware of the procedure in the jurisdiction in which your case is pending, ask your judge. Additionally, either party may contact a private mediation firm to inquire about mediation services and mediators. However, both parties must agree to mediate. If both sides agree to mediate with a private mediation provider, counsel will collaborate to select a mutually agreeable mediator for their case. Besides looking at potential mediator biographies, the parties can ask a private mediation firm for guidance regarding the qualifications and styles of various mediators. Also, counsel can speak to potential mediators before the mediation to better assess their “fit” for the case.

Discovery

Discovery is the most time-consuming period of pretrial litigation. ISCR 201(d) states that discovery may commence when all defendants have appeared or are required to appear. But discovery also may commence before all defendants have appeared with leave of court or by agreement of the parties. If your case has multiple plaintiffs or defendants, try to reach agreement with your opposition about issuing written discovery early in the case — even before all parties have appeared. Start discovery early to gain time.

Pending Motions to Dismiss

Parties often delay the initiation of discovery because of a pending motion to dismiss. This is a mistake. The months of time lost while a motion to dismiss is briefed and heard is time that will not extend the Time Standards. If your opposition wants to stay discovery pending a ruling on a motion to dismiss, consider an exchange of limited discovery. If no accord can be reached, ask the court to rule on your dispute. While trial judges dislike hearing discovery disputes, a motion seeking an order to proceed with discovery presents a yes/no question. If the judge believes that discovery should wait until a ruling on the motion to dismiss is made, you may be able to leverage that if a time crunch develops later. While you wait, get your discovery ready to issue upon receipt of the court’s order denying the motion to dismiss. If the court agrees that discovery should commence, then you can proceed.

Additional Time Requests

Once discovery has begun in earnest, timeliness in responding to interrogatories and requests for production is critical. To save time, parties should answer discovery in the time allotted by the ISCR. Too often, parties fall into the rut of informally seeking additional time to complete written discovery. This should be avoided. But when you must, file a motion seeking additional time to answer written discovery.[4] Your written motion requesting additional time to respond to discovery serves two purposes: It demonstrates your respect for the court and the court’s rules; and it alerts the court that your case may be complex and require more focused case management.

Follow Up

Docket discovery deadlines and follow up if the responding party is not timely. While written discovery is often onerous, persistence pays dividends. If there is no response from your opposition and you have made a telephone call, not just sent a letter, in compliance with ISCR 201(k), bring the delinquency to the trial judge’s attention. This motion demonstrates to the judge that you are on top of your case and it allows the judge to refocus deadlines contained in a prior order.

End of Written Discovery

While mediation is an option throughout the discovery process, attorneys should take a hard look at their case as written discovery ends. Have the produced documents solidified your case? Or have they sunk it? Oral discovery is great for locking in the testimony of witnesses who will testify in your case, but depositions rarely result in admissions that were not documented in written discovery. If both sides believe a resolution is possible, this is a fair time to get a mediator involved.

Scheduling & Taking of Oral Discovery

As documents are produced and analyzed, a diligent attorney will begin thinking about the next steps; i.e., what depositions are needed to prosecute or defend your case. Scheduling is a common roadblock causing unnecessary delay, especially in multiparty cases or cases with many depositions. While analysis of written discovery is progressing, schedule time with opposing counsel to compare calendars and select days when everyone is free for future depositions. Blocking dates for depositions ensures that you complete oral discovery within the Time Standards. You will always encounter a recalcitrant or busy witness; blocking deposition dates early leaves a buffer. Don’t let the recalcitrant witness be your demise — get the witness served promptly with a subpoena and if you cannot agree upon deposition dates, bring a motion to the court requiring appearance before a specific date. And remember to document all your communications attempting to reach reasonable deposition dates so that you can attach them as exhibits to any motion you may need to bring. Courts will not hesitate to grant motions that require witnesses to appear for a deposition within a reasonable time, especially when reasonable efforts were made in advance of court intervention. Advanced planning and reasonable communication, in addition to making you a true professional, have the added benefit of establishing facts that could support a trial-continuance motion brought under ISCR 231(a).

For those who consider mediation, the conclusion of oral nonexpert fact discovery is one of the best times to move forward with mediation. Documents are in hand, testimony is locked in, and both sides can evaluate the strengths and weaknesses of their case.

Additional Parties

Adding parties is another common cause of delay in complex cases. Contribution, indemnity, and other third-party claims have limitation periods that often delay completion of discovery. Judges and lawyers should be diligent in identifying cases where additional parties may be added, such as in construction, medical malpractice, fraud, and insurance claims. When the addition of new parties is inevitable, commence that discovery immediately. You may have to issue subpoenas but waiting while a defendant considers bringing a contribution claim could put you in a bind. One of two things is likely to happen: Your trial will be delayed, or you will feel the squeeze as the Time Standards deadline approaches.

Even worse from a defendant’s point of view, when a defendant waits to add parties late in the case, the trial court may sever the third-party claims. This leaves the possibility of two trials, instead of one, for a defendant who is unsuccessful at trial. While Illinois courts have a policy preference for a joint trial, severance of third-party claims has been approved by the Illinois Appellate Court in appropriate circumstances.[5] The point here is to bring third-party claims as quickly as possible.

Expert Discovery

Expert discovery is a complex process. Attorneys generally know when an expert is necessary or advisable, but experts are expensive and time-consuming. Expert discovery often involves presentation of complex Frye/Daubert motions, motions to strike unfounded opinions, and costly depositions. If you cannot resolve your case before expert discovery is complete, mediation is still an appropriate option after expert discovery is finished. With discovery concluded, all that is left is settlement or trial. Settlement is always preferrable — it gives each side a chance to resolve the case on terms that are acceptable to them.

Motions for Summary Judgement

Summary judgment motions should be brought at the earliest possible time — generally after locking in all testimony needed to win your motion and before expert discovery. Consider the tight timing generated by the interplay of: ISCR 218(c) (i.e., all discovery to be completed no later than 60 days before trial); local rules (e.g., Cook County Local Rule 2.1(f) (motions for summary judgment must be before the court for initial presentation and entry of a briefing schedule not later than 45 days before trial)); and when you want your ruling, i.e., before you start trial preparation. You will not save your client much money if the court’s ruling on summary judgment is made on or near the trial date.

Summary judgment motions also bring settlement opportunities. Each side can get a glimpse of the strengths and weaknesses of the case.

Trial Dates

Nothing brings a case to a close like a timely scheduled trial date. Three approaches are commonly utilized by judges in setting a trial date:

• set the trial at the initial case management conference and schedule discovery based upon the trial date;
• set a trial date when parties determine no expert witnesses are required; or
• set a trial date when an expert schedule is ordered.

Most cases are resolved before trial — many by voluntary mediation conducted with experienced mediators. When your trial date is set, consider whether you will need a trial to resolve the case or if an agreed settlement is best for your client. Mediation can be arranged quickly. Even on the eve of trial, a mediated settlement is often possible.

Reframing the Time Standards

The Illinois Supreme Court’s Time Standards may feel restrictive at first glance, but they are grounded in longstanding practice and intended to promote fairness, efficiency, and resolution.

Attorneys who proactively manage service of process, written and oral discovery, motions, and scheduling will find that the Time Standards provide a useful case-management framework. By maintaining steady progress, counsel can meet these deadlines and still have time to consider mediation instead of trial. Using the Time Standards advantageously, counsel will have the best chance of achieving optimal results for their clients.

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Hon. Patrick J. Sherlock, (Ret.) has over 35 years of experience in litigation matters, garnering a reputation for his work ethic, thoughtfulness and inventive approach to resolving commercial and complex tort disputes. While on the bench, Judge Sherlock presided over and settled many notable cases, including the first baby powder mesothelioma case in Illinois and a multi-billion dollar class action concerning shareholder rights. His rulings have been affirmed by more than 100 appellate court opinions.

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[1] Ill. S. Ct., M.R. 31228 (eff. July 1, 2022), law.isba.org/4wRWjjv.

[2] See 735 ILCS 5/2-202.

[3] See 735 ILCS 5/2-203.1; Ill. S. Ct. R. 102(f).

[4] See Ill. S. Ct. Rs. 183, 231.

[5] See Ramirez v. Avon Products, Inc., 2024 IL App (1st) 240441-U; Cholipski v. Bovis Lend Lease, Inc., 2014 IL App (1st) 132842.

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