Three Recent Decisions by Illinois Appellate Courts

This month, we highlight three recent decisions by Illinois appellate courts which put caution flags around three relatively obscure pitfalls. They span nearly the entire length of a typical civil case in Illinois from the initial pleading, through discovery, to the jury instructions offered at trial. At each of these points, the practitioner who is oblivious to the hazard may suffer dire consequences.

1. There's a reason for that catch-all prayer for relief.
We begin with the boilerplate language found in the prayer for relief of most initial pleadings, in which the prudent practitioner seeks such other and further relief as the court deems equitable and just. In case you ever wondered whether such routine verbiage is really essential, In re Marriage of Thornley, No. 4-05-0178, 2005 WL 3061213, 2005 Ill. App. LEXIS 1129 (4th Dist. 2005), recently pointed out the importance of this catch-all. Stephanie Thornley had filed a petition for dissolution of her short marriage to Jason Thornley, and the petition asked for an order denying maintenance for either party. Despite this prayer, the court ultimately felt the circumstances required an award to Stephanie of maintenance in gross, for the support she had provided her husband while he studied to become a chiropractor.

On appeal, her husband argued that she should be limited to that portion of her petition that prayed for a judgment denying maintenance to either spouse. However, the appellate court affirmed the judgment for the wife, holding that the catch-all prayer for relief, which her counsel tacked on to the end of the petition, preserved her the option to receive such maintenance, even though it exceeded or was inconsistent with what another part of the prayer for relief had sought.

The moral: always include the catch-all.

2. If you want discovery of an autopsy, you better ask for it the right way.
In Fosse v. Pensabene, No. 2-04-1267, 2005 WL 2931834, 2005 Ill.App. LEXIS 1095 (2d Dist. 2005), the appellate court allowed the plaintiff in a wrongful death case to arrange for an autopsy of the decedent without telling the defendant about it, because the defendant had failed to serve an interrogatory requesting advance notice. The court had before it two questions certified for interlocutory appeal: (1) whether an autopsy performed during litigation is discovery, and (2) whether the defense was entitled to notice before the autopsy.

Although the court held that an autopsy is a discovery method, it is not, in and of itself, discovery. Second, the court held that whether it is an abuse of the discovery rules for a plaintiff to unilaterally obtain an autopsy on the corpse of the plaintiff™s decedent depends upon whether there is an existing defense interrogatory requesting notice or whether there is a court order requiring such notice. In this case, there was neither.

The defendant did serve a standard interrogatory asking whether any autopsy was performed on the decedent and, if so, give the name and last known address of the person performing the said autopsy, the date it was performed, and the place it was performed. But the court held that this was phrased in the past tense and was not a demand to view or participate in a future examination and autopsy the decedent.

The court also specifically rejected the defendant's argument that an autopsy is destructive testing and that, therefore, defendant should have been entitled to advance notice under Shimanovsky v. General Motors Corp., 181 Ill.2d 112, 692 N.E.2d 286, 229 Ill.Dec. 513 (1998).

The moral: if you want advance notice of an autopsy, you better ask for it properly.

3. Finally, take your time with a conditional tender of jury instructions.
A jury instruction conference may seem like a negotiation with the judge and opposing counsel, with back-and-forth colloquy and less formality than other parts of a trial. In this less structured context, if the judge rejects your instruction but adopts the one submitted by your opponent, you might make a conditional tender of a less damaging alternative. This can be a smart move unless the judge adopts your alternative and you still lose. If you hope to argue on appeal that it was error for the judge to reject your original instruction, you better treat the instruction conference with more formality than a simple negotiation.

In Brax v. Kennedy, No. 1-04-0444, 2005 WL 3301640, 2005 Ill.App. LEXIS 1194 (1st Dist. 2005), the appellate court held that since the conditional instruction was offered before the trial court had formally rejected the initial request, the appellant had waived her argument that she should have instead gotten the first instruction requested.

The moral: before making a conditional tender of an alternative instruction, make sure the record clearly reflects that the court has formally rejected the instruction you preferred.