May 20, 2021 brought to Illinois a new Supreme Court case. While not a divorce case, it will affect the practice of family law.
Palos Community Hospital v. Humana Insurance Co., Inc., 2021 IL 126008.
Before now, lawyers could not go to a pretrial (settlement) conference and test the waters (the court’s predisposition of the case), only to then request a substitution of judge as a matter of right. Welcome to the new lay-of-the land!
The Supreme Court in a brief decision did away with the testing-the-waters doctrine. Illinois lawyers had operated with this doctrine for decades. The Court held:
We hold that the test the waters doctrine is incompatible with the plain language of section 2-1001(a)(2). As the statutory text makes clear, so long as a party files its substitution motion before certain, specified occurrences, the party is “entitled to one substitution of judge without cause as a matter of right.” 735 ILCS 5/2-1001(a)(2)(i). In part, the statute provides that a motion for substitution of judge as of right shall be granted if the motion is presented both before the trial or hearing begins and before the judge to whom the motion is presented has ruled on any substantial issue in the case. Id. § 2-1001(a)(2)(ii). A party having “been able to form an opinion as to the court’s disposition toward his or her case” is not among the criteria listed in the statute. Thus, the test the waters doctrine is an improper basis on which to deny a motion for substitution of judge as of right.
While this decision did not specifically involve a pretrial conference, it clearly should apply to our family law settlement conferences. The exception: where there is a pretrial conference followed by an agreed order that immediately follows and implements the recommendations of the court.