Patrick A. Salvi II: Bill rightly clarifies statute for litigants 67 years or older

The following letter to the editor by ITLA President Patrick A. Salvi II was published in the Chicago Daily Law Bulletin on May 9, 2023.

Since 1990, there has existed a trial preference statute for older litigants, who understandably may prefer, or need, their legal dispute to conclude quickly. The trial preference statute as it exists, though well meaning, does not provide guidance to the trial judges deciding motions for trial preference. SB 1748 provides that guidance by amending 735 ILCS 5/2-1007.1.

Under the currently proposed bill, a party 67-years-old or over may move the court for trial preference setting and receive a trial date within one year. The motion can only be brought once the defendants have answered the complaint, which would require pleadings motions to conclude prior to a trial preference motion. The trial may only involve those parties receiving notice of the motion, which means the clock resets if a plaintiff adds a defendant after receiving a trial date under the statute. Further, the court retains flexibility to continue the trial 6 months for good cause and grant additional continuances as circumstances require. As we all know, lawyers respond to deadlines and trial dates.

Litigation is frequently delayed through no fault of the litigants: subpoenas for depositions of treating physicians at the eleventh hour, contribution claims added late, attorneys’ trial schedules packed for the foreseeable future, experts who cannot give a deposition for months. Are those compelling reasons for an elderly party to have to wait it out? For these reasons and others, no opposition has been filed to the bill – except Illinois Defense Counsel. Notably, the AARP supports the bill.

In his recent column, Donald Eckler criticized the bill. First, he notes an acute issue in Cook County where trial judges are not readily available. It is hard to see the connection. For one, the issue is one this author confidently believes will be resolved as the Circuit Court reassigns judges to meet the County’s needs. But even if we embrace Mr. Eckler’s cynicism that any existing problem will last in perpetuity, “trial preference” is exactly that – these cases take preference on the docket over others, not create overload on any given day when cases are being sent to trial judges. Additionally, only a very small percentage of cases go to trial, which means these cases will resolve sooner with a quicker trial date.

Finally, Mr. Eckler reads into the bill something which does not exist – that a defendant, who has not moved the court for trial preference, may extend the time to trial by adding a contribution claim at the last minute. This interpretation is contrary to the purpose of the bill, as a defendant could add a contribution claim right before trial and extend the trial date. As was expressly allowed in Cook v. General Elec. Co., 146 Ill.2d 548 (1992), contribution claims need not be tried with the underlying case. In Mr. Eckler’s example, a defendant that waited too long to add a third-party defendant should go to trial on the underlying case first and, depending on the outcome, seek contribution at a subsequent trial.

Patrick A. Salvi II
President, Illinois Trial Lawyers Association