As published in The Chicago Daily Law Bulletin
I recommend all trial lawyers read Alex Beehler’s article on Section 2-1009 non-suits, The Voluntary Dismissal: Getting It Right, from this January’s CBA Record. I had a few additional thoughts and he responded thoughtfully.
First, some background. The statue on non-suits attempts to balance directly competing interests. Non-suits can be costly and disruptive to the defense. Not getting a non-suit, especially after the denial of a motion for continuance, may unfairly impair a plaintiff's right to a trial on the merits. The ability to non-suit is deemed so important that plaintiff is given one opportunity to non-suit "as of right".
First, some background. The statue on non-suits attempts to balance directly competing interests. Non-suits can be costly and disruptive to the defense. Not getting a non-suit, especially after the denial of a motion for continuance, may unfairly impair a plaintiff's right to a trial on the merits. The ability to non-suit is deemed so important that plaintiff is given one opportunity to non-suit "as of right".
There is a very important difference between a motion "of right" and one merely within a judge's discretion. A motion of-right can be firmly relied upon. The judge may not like it, but still has to grant it. No one can rely on the potential outcome of any ruling that is discretionary. Every lawyer has stories of losing the motion that cannot be lost. That's what makes of-right so valuable. To be of-right, a motion for non-suit must meet two time requirements.
Filing
The first timed event is filing. A motion for non-suit filed before the filing of a dispositive motion to dismiss preserves the as-of-right status. That non-suit motion is to be granted without exception. The later filed motion to dismiss is knocked aside. In order to preserve of-right status, a plaintiff who is even remotely contemplating non-suit may wish to have a motion on file. The motion may or may not ever be noticed or heard but filing preserves of-right status.
While preserving the as-of-right status, filing a motion may have consequences. For example, a defendant may question the commitment of a plaintiff who has filed a motion for non-suit. It may affect settlement value. Still, plaintiff has preserved the of-right status of the motion and knows it will be granted if needed.
Civility demands plaintiffs give defendants as much notice as possible when actually seeking a non-suit. A defense counsel who spent the weekend immersed in the case will be justly upset to see the plaintiff on Monday walking into trial with a motion for non-suit. The statute provides for reimbursement of court costs but not fees.
From the other perspective, a defendant seeking to block a non-suit as of right may want to have a dispositive motion on file. A later-filed motion for non-suit will then not be of-right. It may still be granted but it won't be granted as of right.
Again, for both motions, the operative time is when the motion is filed, not presented.
Two rarely used tactics may sometimes be worth considering. One is a motion to vacate an order granting non-suit. If the plaintiff becomes ready to proceed and willing to comply with reasonable accommodation to the defendant, moving to vacate may sometimes work better than refiling and starting over. Another tactic to clear the deck is the opposing side's noticing the other's previously filed motion, in effect calling their bluff.
It should be apparent that non-suits are a tactic of last resort. While not a final victory, a non-suit is usually considered a hard knock-down. A large percentage are never refiled. After refiling, a contingent fee attorney has to expend more work and expense just to get back to where they had been. It may be difficult convincing the defense that this time they are serious.
Start of trial
The second timed event is start of trial. Plaintiff loses of-right status after trial has started. The problem is, the law is unclear as to when trial starts. As Mr. Beehler reviewed in his article, the cases generally refer to start of trial as varying points during voir dire.
Although there is some case support, it is ambiguous to say trial starts when jury selection starts. Jury selection varies widely among judges. Some judges begin with opening remarks to the entire voir dire. Some judges begin by seating prospective jurors in the box. Some start with the oath to the venire. Some begin by giving the lawyers access to the juror cards. Every judge has a different method, meaning trial would "start" at different points in different courtrooms. That means it is unclear when a motion for non-suit is no longer of-right.
Becoming a juror happens by taking an oath. There are no jurors until the first venirepeople are sworn. The very word means one who has sworn. Every judge has seen "selected' venirepeople back out while waiting around in the jury room. They are not yet jurors. No commitments have been made. It cannot be said that any jurors have been selected until the first panel takes the oath to serve.
Once sworn to serve, venirepeople assume the nearly sacred role we give to jurors and are then subject to the rights and responsibilities of jurors. We stand for them. We protect them. But we also hold them accountable for following the rules. For example, they are repeatedly admonished not to discuss the case with anyone. Swearing the first panel is a definite landmark that trial has started. It makes for an easily defined rule after which a motion for non-suit may no longer be of-right.
The practice point for judges is to swear each panel as soon as selected. Venirepeople who have been qualified should not be kept waiting. Giving the oath starts the mutual commitments and clearly ends the ability to non-suit as of right.
In the never-ending struggle to give both parties a fair and efficient opportunity to be heard on the merits, non-suit of-right is key, but also key are the limitations.
After I shared some thoughts with Alex Beehler in response to his excellent article in the CBA Review, Alex in turn thoughtfully replied, and has allowed me to post his comments in full:
For frame of reference, Section 1009 of the Illinois Code of Civil Procedure allows a voluntary dismissal to be “of right” if it is filed prior to the start of trial. In my CBA Record article, I erred on the side of safety in the publication and concluded that plaintiffs should bring the motion to voluntarily dismiss before the start of jury selection. I agree that is not entirely clear when jury selection starts because different judges do things differently. To me, the current state of the law is that once jurors are in the courtroom and the judge begins to do whatever-that-judge-does to initiate jury selection, then trial has begun. This conclusion incorporates the holding from Baird v. Adeli, 214 Ill. App. 3d 47 (4th Dist. 1991), which affirmed a trial court for denying plaintiff’s motion for a voluntary dismissal after the trial court excused seven jurors for cause and the plaintiff used two peremptory challenges during voir dire. It also incorporates the holding from Kahle v. John Deere Co., 104 Ill. 2d 302, 309 (1984), which held trial had not begun for Section 1009 when “no jury had been selected; no prospective jurors had been examined or sworn; and counsel had made no opening statement.”
Personally, I think Kahle’s holding creates unfair results because plaintiffs can still use a voluntary dismissal after potentially unfavorable rulings on motions in limine. Why shouldn’t trial begin for purposes of Section 1009 when motions in limine begin? The trial judge begins to make substantive rulings on legal issues involving the trial. Parties can no longer SOJ the judge as a matter of right; why should they be allowed to take a voluntary as a matter of right? In larger counties, the voluntary could effectively act as a substitution of judge. Kahle never discussed this possibility. And holding that trial begins when the parties begin the motions in limine conference in civil litigation is the best way to ensure Section 1009 is not used in an evasive manner from judicial rulings. If a plaintiff wants to take a voluntary afterwards, then they still can, except that the right is no longer absolute and the trial court has some discretion to make sure the voluntary is not being taken for improper purposes.
In my research, I came across a recent case I was not aware of that involves voluntary dismissals. The case I am referring to is Freeman v. Crays, 2018 IL App (2d) 170169, an appeal arising out of a wrongful death case where the plaintiff’s decedent suffered a cardiac arrest and died suddenly at the age of 37. The allegations against the defendant doctor were that she negligently treated his cardiovascular disease.
In Freeman, the case proceeded to the final pretrial conference where the trial court ruled on various motions in limine prior to expert evidence depositions. The plaintiff decided that a family practitioner would be the only expert she would call, and the trial court determined that the family practitioner could not offer causation opinions because he was not a cardiologist. The evidence deposition proceeded, with numerous objections, and those objections were sustained when the parties appeared in court three days later. The trial court effectively barred the plaintiff’s only expert that could potentially prove causation. The plaintiff then moved to voluntarily dismiss after the jury was selected, but not sworn. The appellate court specifically mentioned that “Defendant neither objected to the voluntary dismissal nor requested that plaintiff be sanctioned pursuant to Rule 219(e).” Which, to me, is a real shame. That case could have helped develop this area of law further.
The plaintiff refiled the lawsuit seven days later. The plaintiff next revealed that she intended to disclose a cardiologist expert. The defendant objected, and filed a motion to adopt the discovery orders and in limine rulings from the first case. The trial court granted the motion because it was clear the plaintiff was attempting to cure the evidentiary gap. The trial court barred the plaintiff from presenting an expert cardiologist. The defendant moved for summary judgment on causation, which was then granted. The motion to reconsider was denied. The plaintiff appealed.
The appellate court affirmed the trial court’s decision to bar the original expert’s causation opinions. But the appellate court rejected the trial court’s application of 219(e) because it relied on the wrong authority to make its decision (it followed Jones v. Chi. Cycle Ctr., 391 Ill. App. 3d 101, a case about 219(e) sanctions, rather than Smith v. P.A.C.E., 323 Ill. App. 3d 1067, a case about barring evidence in a refiled action). The appellate court remanded the case back to the trial court to conduct the appropriate analysis when determining whether to exclude the newly-disclosed cardiologist’s testimony.
Freeman brings up a few points to consider with the voluntary dismissal:
1. When does trial start for purposes of the voluntary dismissal statute?
The fact that these motions in limine were ruled on prior to an evidence deposition does not help my theory that the beginning of rulings on motions in limine should signal the start of trial. But the subsequent facts support my rationale of why the beginning of the trial court’s rulings on motions in limine should be the line on when the right to a voluntary dismissal stops being absolute. Maybe the statute should be changed to take away the “before trial” language?
The plaintiff made a startlingly poor tactical choice on not hiring an expert cardiologist on a case involving cardiology. If the plaintiff was struggling to find a cardiology expert as the (f)(3) disclosure deadline was approaching, that would have been the appropriate time to take the voluntary.
Instead, after receiving an unfavorable ruling effectively at trial, the plaintiff then dismissed the case and refiled. If the defendant made a similar mistake and received a similarly unfavorable ruling, it would be out of luck on doing anything about it other than appealing after a verdict. It just does not seem fair. Even if the trial court winds up preventing the plaintiff from calling an expert cardiologist in Freeman, it still is a substantial waste of time on an issue that could have been decided sooner. There is a judicial economy element present here too.
In Freeman, the jury was selected, but not sworn—the perfect case for our arguments. Baird v. Adeli indicates the voluntary dismissal would not have been an absolute right at this time. Kahle v. John Deere really is not clear if this is appropriate. Had this argument not been waived, which way do you think the Second District or the Illinois Supreme Court would have gone?
2. Defendants should really be more aware of the voluntary dismissal rule.
I think that, had defendant objected to the motion, the motion to voluntarily dismiss may have been rejected by the trial court. Further I think the defendant could have relieved its client of expenses under Rule 219(e) had it just filed the request in the original action. If the plaintiff could not pay the (likely substantial) expenses, there probably would have been no refiling. Because the trial court based its subsequent decision on the Jones case, and barred the witness from testifying, it would have likely found that expenses were warranted (like in Jones).
Filing
The first timed event is filing. A motion for non-suit filed before the filing of a dispositive motion to dismiss preserves the as-of-right status. That non-suit motion is to be granted without exception. The later filed motion to dismiss is knocked aside. In order to preserve of-right status, a plaintiff who is even remotely contemplating non-suit may wish to have a motion on file. The motion may or may not ever be noticed or heard but filing preserves of-right status.
While preserving the as-of-right status, filing a motion may have consequences. For example, a defendant may question the commitment of a plaintiff who has filed a motion for non-suit. It may affect settlement value. Still, plaintiff has preserved the of-right status of the motion and knows it will be granted if needed.
Civility demands plaintiffs give defendants as much notice as possible when actually seeking a non-suit. A defense counsel who spent the weekend immersed in the case will be justly upset to see the plaintiff on Monday walking into trial with a motion for non-suit. The statute provides for reimbursement of court costs but not fees.
From the other perspective, a defendant seeking to block a non-suit as of right may want to have a dispositive motion on file. A later-filed motion for non-suit will then not be of-right. It may still be granted but it won't be granted as of right.
Again, for both motions, the operative time is when the motion is filed, not presented.
Two rarely used tactics may sometimes be worth considering. One is a motion to vacate an order granting non-suit. If the plaintiff becomes ready to proceed and willing to comply with reasonable accommodation to the defendant, moving to vacate may sometimes work better than refiling and starting over. Another tactic to clear the deck is the opposing side's noticing the other's previously filed motion, in effect calling their bluff.
It should be apparent that non-suits are a tactic of last resort. While not a final victory, a non-suit is usually considered a hard knock-down. A large percentage are never refiled. After refiling, a contingent fee attorney has to expend more work and expense just to get back to where they had been. It may be difficult convincing the defense that this time they are serious.
Start of trial
The second timed event is start of trial. Plaintiff loses of-right status after trial has started. The problem is, the law is unclear as to when trial starts. As Mr. Beehler reviewed in his article, the cases generally refer to start of trial as varying points during voir dire.
Although there is some case support, it is ambiguous to say trial starts when jury selection starts. Jury selection varies widely among judges. Some judges begin with opening remarks to the entire voir dire. Some judges begin by seating prospective jurors in the box. Some start with the oath to the venire. Some begin by giving the lawyers access to the juror cards. Every judge has a different method, meaning trial would "start" at different points in different courtrooms. That means it is unclear when a motion for non-suit is no longer of-right.
Becoming a juror happens by taking an oath. There are no jurors until the first venirepeople are sworn. The very word means one who has sworn. Every judge has seen "selected' venirepeople back out while waiting around in the jury room. They are not yet jurors. No commitments have been made. It cannot be said that any jurors have been selected until the first panel takes the oath to serve.
Once sworn to serve, venirepeople assume the nearly sacred role we give to jurors and are then subject to the rights and responsibilities of jurors. We stand for them. We protect them. But we also hold them accountable for following the rules. For example, they are repeatedly admonished not to discuss the case with anyone. Swearing the first panel is a definite landmark that trial has started. It makes for an easily defined rule after which a motion for non-suit may no longer be of-right.
The practice point for judges is to swear each panel as soon as selected. Venirepeople who have been qualified should not be kept waiting. Giving the oath starts the mutual commitments and clearly ends the ability to non-suit as of right.
In the never-ending struggle to give both parties a fair and efficient opportunity to be heard on the merits, non-suit of-right is key, but also key are the limitations.
After I shared some thoughts with Alex Beehler in response to his excellent article in the CBA Review, Alex in turn thoughtfully replied, and has allowed me to post his comments in full:
For frame of reference, Section 1009 of the Illinois Code of Civil Procedure allows a voluntary dismissal to be “of right” if it is filed prior to the start of trial. In my CBA Record article, I erred on the side of safety in the publication and concluded that plaintiffs should bring the motion to voluntarily dismiss before the start of jury selection. I agree that is not entirely clear when jury selection starts because different judges do things differently. To me, the current state of the law is that once jurors are in the courtroom and the judge begins to do whatever-that-judge-does to initiate jury selection, then trial has begun. This conclusion incorporates the holding from Baird v. Adeli, 214 Ill. App. 3d 47 (4th Dist. 1991), which affirmed a trial court for denying plaintiff’s motion for a voluntary dismissal after the trial court excused seven jurors for cause and the plaintiff used two peremptory challenges during voir dire. It also incorporates the holding from Kahle v. John Deere Co., 104 Ill. 2d 302, 309 (1984), which held trial had not begun for Section 1009 when “no jury had been selected; no prospective jurors had been examined or sworn; and counsel had made no opening statement.”
Personally, I think Kahle’s holding creates unfair results because plaintiffs can still use a voluntary dismissal after potentially unfavorable rulings on motions in limine. Why shouldn’t trial begin for purposes of Section 1009 when motions in limine begin? The trial judge begins to make substantive rulings on legal issues involving the trial. Parties can no longer SOJ the judge as a matter of right; why should they be allowed to take a voluntary as a matter of right? In larger counties, the voluntary could effectively act as a substitution of judge. Kahle never discussed this possibility. And holding that trial begins when the parties begin the motions in limine conference in civil litigation is the best way to ensure Section 1009 is not used in an evasive manner from judicial rulings. If a plaintiff wants to take a voluntary afterwards, then they still can, except that the right is no longer absolute and the trial court has some discretion to make sure the voluntary is not being taken for improper purposes.
In my research, I came across a recent case I was not aware of that involves voluntary dismissals. The case I am referring to is Freeman v. Crays, 2018 IL App (2d) 170169, an appeal arising out of a wrongful death case where the plaintiff’s decedent suffered a cardiac arrest and died suddenly at the age of 37. The allegations against the defendant doctor were that she negligently treated his cardiovascular disease.
In Freeman, the case proceeded to the final pretrial conference where the trial court ruled on various motions in limine prior to expert evidence depositions. The plaintiff decided that a family practitioner would be the only expert she would call, and the trial court determined that the family practitioner could not offer causation opinions because he was not a cardiologist. The evidence deposition proceeded, with numerous objections, and those objections were sustained when the parties appeared in court three days later. The trial court effectively barred the plaintiff’s only expert that could potentially prove causation. The plaintiff then moved to voluntarily dismiss after the jury was selected, but not sworn. The appellate court specifically mentioned that “Defendant neither objected to the voluntary dismissal nor requested that plaintiff be sanctioned pursuant to Rule 219(e).” Which, to me, is a real shame. That case could have helped develop this area of law further.
The plaintiff refiled the lawsuit seven days later. The plaintiff next revealed that she intended to disclose a cardiologist expert. The defendant objected, and filed a motion to adopt the discovery orders and in limine rulings from the first case. The trial court granted the motion because it was clear the plaintiff was attempting to cure the evidentiary gap. The trial court barred the plaintiff from presenting an expert cardiologist. The defendant moved for summary judgment on causation, which was then granted. The motion to reconsider was denied. The plaintiff appealed.
The appellate court affirmed the trial court’s decision to bar the original expert’s causation opinions. But the appellate court rejected the trial court’s application of 219(e) because it relied on the wrong authority to make its decision (it followed Jones v. Chi. Cycle Ctr., 391 Ill. App. 3d 101, a case about 219(e) sanctions, rather than Smith v. P.A.C.E., 323 Ill. App. 3d 1067, a case about barring evidence in a refiled action). The appellate court remanded the case back to the trial court to conduct the appropriate analysis when determining whether to exclude the newly-disclosed cardiologist’s testimony.
Freeman brings up a few points to consider with the voluntary dismissal:
1. When does trial start for purposes of the voluntary dismissal statute?
The fact that these motions in limine were ruled on prior to an evidence deposition does not help my theory that the beginning of rulings on motions in limine should signal the start of trial. But the subsequent facts support my rationale of why the beginning of the trial court’s rulings on motions in limine should be the line on when the right to a voluntary dismissal stops being absolute. Maybe the statute should be changed to take away the “before trial” language?
The plaintiff made a startlingly poor tactical choice on not hiring an expert cardiologist on a case involving cardiology. If the plaintiff was struggling to find a cardiology expert as the (f)(3) disclosure deadline was approaching, that would have been the appropriate time to take the voluntary.
Instead, after receiving an unfavorable ruling effectively at trial, the plaintiff then dismissed the case and refiled. If the defendant made a similar mistake and received a similarly unfavorable ruling, it would be out of luck on doing anything about it other than appealing after a verdict. It just does not seem fair. Even if the trial court winds up preventing the plaintiff from calling an expert cardiologist in Freeman, it still is a substantial waste of time on an issue that could have been decided sooner. There is a judicial economy element present here too.
In Freeman, the jury was selected, but not sworn—the perfect case for our arguments. Baird v. Adeli indicates the voluntary dismissal would not have been an absolute right at this time. Kahle v. John Deere really is not clear if this is appropriate. Had this argument not been waived, which way do you think the Second District or the Illinois Supreme Court would have gone?
2. Defendants should really be more aware of the voluntary dismissal rule.
I think that, had defendant objected to the motion, the motion to voluntarily dismiss may have been rejected by the trial court. Further I think the defendant could have relieved its client of expenses under Rule 219(e) had it just filed the request in the original action. If the plaintiff could not pay the (likely substantial) expenses, there probably would have been no refiling. Because the trial court based its subsequent decision on the Jones case, and barred the witness from testifying, it would have likely found that expenses were warranted (like in Jones).