Congratulations! You’ve been admitted to the Illinois Bar. You’ve worked for years to hear those words. But now what?
For most of us, neither law school nor the bar exam prepared us for what it really means to engage in the practice of law in Chicago. Here’s what we wish we had known for our first years on the job.
Federal district court
First and foremost, you must be admitted to the bar for the Northern District of Illinois in order to practice in federal court. If you anticipate that your practice will involve federal court litigation, you should apply for admission after you are sworn in to practice in Illinois.
You might think that all federal courts conduct business in the same way. However, while the Federal Rules of Civil Procedure apply to each of the federal courts, the federal courts maintain their own local rules and practices.
In the Northern District of Illinois, all motions filed must be noticed for presentment. This means you have to file a “notice of motion” along with your motion telling the judge and opposing counsel when you will appear to present your motion (and be prepared to argue it) in court.
In general, parties must file a motion by 4:30 p.m. of the second business day preceding the date of presentment. However, most judges implement case procedures (or “standing orders”) for motion practice in their courtrooms, specifying the days and times they hear motions as well as the number of days’ notice needed for motion hearings.
Be sure to check your judge’s case procedures or standing orders at the very outset of the case.
At the motion presentment, the judge might decide the motion or set a briefing schedule for the parties. In some circumstances, such as an agreed motion to extend time to answer or to enter a confidentiality order, the judge will decide the motion before the noticed appearance, obviating the need to appear.
Most judges set active cases for status hearings every 30 or 60 days.
Unlike in state court, which we will discuss next, the judge will prepare the order and you will receive it electronically, typically within 24 hours after the status or motion hearing.
As to discovery, before filing a discovery motion, an attorney must first conduct an in-person or telephonic “meet and confer” with the opposing party and certify that counsel made — or attempted to make — a good-faith attempt to resolve differences. Parties should be prepared to argue any discovery motion on the date it is presented, and the court will often rule on the motion after hearing argument and without further briefing.
Each federal judge is assigned a deputy clerk. This person is typically a non-lawyer, but their value to the judge and to you should not be underestimated. The clerk can be your best resource if you want to know how a certain judge would prefer for a situation to be addressed.
For instance, your judge may permit parties to call in jointly to ask for a status to be rescheduled if there is an unexpected scheduling conflict. Be sure to respect the position of the clerks as well as their time. They are not there to provide legal advice, but can often assist with questions regarding scheduling or a judge’s personal preferences.
The 7th Circuit
The first and most important thing to know about the 7th U.S. Circuit Court of Appeals is that you have to master the rules.
Your otherwise perfect brief can be rejected by the 7th Circuit for having a separate heading for your fact section. When you file your brief, the 7th Circuit first reviews the brief for compliance with all procedural rules before it is put on the docket and available to the public. If there is any issue of non-compliance with the rules, the court will issue an order providing time to cure that particular issue.
Another way to ensure your brief is compliant is to take it to the 7th Circuit clerk before filing and ask for a hard copy review.
Note that the 7th Circuit has its own rules for brief length, fonts and justification. You should also be judicious with the use of caps and underlining. Brief text should not be justified and should be instead aligned to the left.
You will not be the first attorney whose eyes have crossed while trying to understand the 7th Circuit’s rules. The clerk can be a great help. For instance, we have made more than one phone call to triple-check there is no preferred way to cite to the district court’s docket.
Cook County Circuit Court
The circuit court can feel like a secret club that you will never be a member of when you first start practice. The great news is that e-filing is now mandatory, and the clerk has recently rolled out a new website, bringing Cook County court closer to 21st-century practice.
Like in federal court, almost every motion must be noticed. Most judges in state court have standing orders letting you know what can be submitted as an agreed order that does not require notice. If you are unclear, err in favor of noticing your motion.
Unlike in federal court, you are responsible for drafting the order at the end of your motion hearing or status. It will not magically appear in your inbox in 24 hours like it does in federal court. When you get to court, review the form orders that are to the side of the courtroom. Pick the one that best suits your case, and fill in all the information you can in advance of your case being called. Sometimes, you get lucky and the form order comes with a packet of three pages — a white front page, a yellow page and a pink page.
More typically, you will see only form orders on white paper. In that case, you need to grab three of the form orders you are using and put carbon paper between the pages. There are no newfangled copy machines here: You are effectively the copy machine.
Make sure your carbon paper is turned the right way, and press your pen down hard. After the clerk stamps off on your motion, be sure to hand opposing counsel one of the copies.
If you file a dispositive motion, it is likely that the judge will set you for a “clerk’s status.” This is exactly what it sounds like: You go to the clerk's office with multiple copies of all of the filings and present them to the clerk.
This may seem redundant because you have already put your brief on file prior to the clerk’s status. Nevertheless, your motion can get dismissed due to your failure to provide the clerk with copies at the status. Bring a complete packet of all of the filings in an easy-to-review format rather than a bunch of copies that you squished into your folder with bent edges. The clerk will briefly review the filings to ensure they are all there and then give you a date for your motion hearing. If you will not be arguing the motion, make sure you know the schedule of whoever will be arguing before you come to court.
The EEOC
The Chicago district office of the U.S. Equal Employment Opportunity Commission now utilizes an electronic respondent portal to provide notice of a charge to employers and to solicit the employer’s position on the allegations made in the charge.
After receiving notice of a charge, an employer oftentimes will have the opportunity to indicate whether it is interested in participating in the EEOC’s mediation program to try and reach an early resolution. If mediation is not pursued or is not successful, the employer will be required to submit a statement of its position, responding to the allegations in the charge and setting forth its version of events.
The EEOC may then request additional information, documents, site visits, and witness interviews. After the EEOC completes its investigation, it will make a determination on the merits of the charge. If the EEOC determines there is reasonable cause to believe discrimination has occurred, the parties may seek to resolve the charge through an informal conciliation process prior to litigation.
Note that the Chicago District Office of the EEOC is often seen as one of the toughest for employers. You can expect the investigators to delve deeply into the allegations of the charge, potentially making numerous requests for additional documentation and information. The Chicago District Office is a leader among the offices in pursuing litigation, also earning a reputation for being aggressive in the litigation it files, and for advancing novel positions in litigation.
Department of Human Rights
Practice before the Illinois Department of Human Rights has recently changed, making practice before this agency look a lot more like EEOC practice. After an employee files a charge of discrimination against a company, the IDHR sends the employer a notice of the charge requesting a position statement and questionnaire response within 60 days.
The IDHR recently got rid of the “verified response” requirement. However, they have continued to use some old forms that ask for such a response and practitioners who have been practicing in Chicago for a while may still think this is a requirement. Feel free to confidently assert that this is no longer required.
Fact-finding conferences are mandatory for most charges. You will get a notice of fact-finding conference after the IDHR receives your position statement and response to the questionnaire.
Read the notice carefully, as it will identify any witnesses that the IDHR requests be present. It is customary to bring a human resources representative as well the supervisory decision-maker to the conference.
If you want to bring anyone else, be sure to let the investigator know in advance.
The fact-finding typically has three phases: Review of the charge, the investigation phase (which we sometimes call the “airing of grievances”) and then, often, a mediation phase.
During the review of the charge phase of the fact-finding, the investigator will ask both the charging party and the employer to respond “true,” “false,” “without knowledge,” or “to be explained” to each allegation in your charge.
We usually have the HR representative handle this phase. We provide them with an annotated copy of the charge, marking the appropriate answer for each allegation. We understand that this is no longer mandatory, but is still the practice at the IDHR.
Next, the investigator will ask the complainant questions about the allegations in their charge. This proceeds as a dialogue between the complainant and the investigator. The employer’s turn comes next. The investigator will ask the employer specific questions and may also ask if there is anything else the employer wants to say after hearing the charging party’s evidence.
You should not assume that the investigator has carefully read your position statement. Take this time to give the investigator the highlights of your defense to the charge. It is also your opportunity to establish the credibility of your witnesses.
After this investigation stage concludes, often the investigator will take the complainant out of the room to ask what it would take for the charging party to dismiss the charge. The investigator will then bring that demand back to the employer, while the charging party remains out of the room. You can respond at that time, or ask the investigator if you can respond within a few days.
The investigators are typically happy to assist in shuttling offers and demands to assist the parties in reaching potential resolution.
If the matter does not resolve after fact-finding, the investigator will continue to work on investigating the case. You may receive requests for information or for phone interviews of additional witnesses. The investigator will then prepare his or her report and submit it to the supervisor.
You may get some additional requests for information or interviews at this time if the supervisor identifies additional information that he/she feels is needed to issue a determination in the case.
Finally, you will get the decision on the charge. The paperwork will either say that the counts of the charge were dismissed for lack of substantial evidence or that the IDHR found substantial evidence. If the IDHR finds substantial evidence on any of the counts, the complainant has 30 days to ask the Illinois Human Rights Commission to file a complaint on his or her behalf before the commission, or 90 days to file a case in state court. The complainant can also file his or her own complaint before the IHRC within the 90-day window.
If the IDHR finds a lack of substantial evidence, the complainant may pursue their claims in state court within 90 days.
Illinois Human Rights Commission
As discussed, if the IDHR issues a finding of “substantial evidence” on a charge, the complainant may file a complaint before the IHRC. Think of the IHRC as a slower-moving state court with administrative law judges.
Proceedings occur at the IHRC inside the Thompson Center. You will have motion and status hearings before the ALJ like you would before a state court judge.
Note that there is no right to take depositions in IHRC matters, so you will have to move to take any depositions (including that of the complainant). Proceedings before the ALJs typically take much longer than in state court. It is not unusual for cases to take years to get to dispositive motions.
Summary judgment is called “summary decision” before the IHRC. If the ALJ rules in the moving party’s favor, he or she issues a recommended order and decision.
Within 30 days after service of that order and decision, either party may file with the IHRC itself written exceptions, supported by argument, to the findings and recommended order of the ALJ.
Following the filing of the exceptions, the IHRC will decide whether to accept the case for review. The IHRC can either decline to review, or agree to review the decision. If the IHRC declines to review the decision, the recommended order and decision becomes the order of the IHRC.
If the ALJ rules against the moving party, the case proceeds to a liability hearing. The IDHR has historically had a multi-year backlog of cases awaiting ruling.
Gov. Bruce Rauner issued an executive order in August seeking to address the backlog, among other issues at the IHRC. It remains to be seen whether Gov.-elect J.B. Pritzker will keep this plan in place.
Illinois Department of Labor
These claims are somewhat rare but procedurally quirky, so we want to ensure we spend some time on this topic.
The employer has 20 days to respond after receiving the notice of claim. The employer may either resolve the claim by writing a check for the amount of the claim, or dispute the claim by answering the claim allegations. The response is typically styled either as an answer to the claim allegations or like a position statement.
All potential defenses should be raised in the first filing responding to the claim. As a general matter, most claims are set for hearing unless they have a technical defect The employer must provide a complete response to the questionnaire, which accompanies the claim.
The employer should also return the address exchange form. All documents filed by the employer must be served on the claimant with an accompanying certificate of service.
The exhibits provided by the claimant to support their claim will not be attached to the claim. Instead, the claimant is expected to provide their evidence directly to the employer after receiving the address exchange form. In some instances, the employer may feel like it cannot respond fully to the claim without reviewing the claimant’s evidence. Nevertheless, the employer should provide a response to the claim within the 20-day deadline, identifying that it cannot fully respond without reviewing the evidence.
Extensions are not given to the 20-day deadline, even if the employer would be able to provide a more complete response to the claim after reviewing the claimant’s evidence.
If a formal hearing is set, you receive notice of the hearing date at least 21 days in advance, if not more. Currently, hearings are set for approximately 18 months after the initial charge was filed. The hearings proceed before an administrative law judge. A hearing date cannot be rescheduled unless a party presents the request for continuance at least 10 days prior to the hearing and demonstrates good cause.
Requests to reschedule should be made via e-mail with accompanying evidence to dol.hearings@illinois.gov.
Unlike litigation proceeding in court or in arbitration, there is typically no prehearing discovery (either written discovery or depositions) at IDOL. The parties must provide any written evidence or documents that they wish to introduce at the hearing to the opposition at least five calendar days before the hearing, and should also provide a copy to the ALJ.
In terms of the hearing itself, the proceedings are informal and strict rules of evidence and procedure are not followed. Each party has the right to have an attorney present. The ALJ will not render a decision on the claim at the hearing; typically, such decisions are not made for at least 90 days after the hearing.
Nuances of employment practice
Beyond the quirks of the courts and administrative agencies in Chicago, Illinois has a few unique state and local laws of which you should be aware:
•The Illinois Human Rights Act is the Illinois equivalent of the federal discrimination statutes. Please note that the IHRA was amended in the last few years to add a pregnancy accommodation provision. Reasonable accommodation under this provision looks a lot like an Americans with Disabilities Act reasonable accommodation analysis, but has some significant differences. Be sure to read this section carefully when advising on the accommodation process. The IHRA also includes a specific (and quirky) provision on the use of arrest records in employment decisions.
An employer must have 15 employees to be covered by most of the IHRA’s provisions. However, some of its provisions apply to employers who have as few as one employee. Specifically, smaller employers are subject to the provisions on unlawful discrimination based upon physical or mental disability unrelated to ability, pregnancy, or sexual harassment.
•Illinois’ Wage Payment & Collection Act is effectively a contract-enforcement statute requiring employers to pay employees as they committed to do during employment. It also requires payout of unused vacation or paid time off on termination of employment and mandates the timing of payment of wages.
Attorneys should review the statutory language as well as the relevant provisions in the Illinois Administrative Code when interpreting or advising clients about the IWPCA. Employees can pursue violations of the IWPCA through the IDOL or through litigation. Changes to the Administrative Code are often made without much notice, so be sure to check the most recent version of the code before advising your client.
•The Illinois Victims’ Economic Security and Safety Act grants eligible employees up to 12 workweeks of unpaid leave from work based upon the size of the employer. VESSA leave can be used to treat injuries caused by domestic or sexual violence, to obtain victim services, to participate in safety planning or relocation efforts, to seek legal assistance, or to participate in legal proceedings. It can be taken intermittently or on a reduced work schedule, but it does not necessarily run concurrently with federal Family Medical Leave Act leave.
•The Illinois Employee Sick Leave Act allows employees to use half of the annual grant of their personal sick leave benefits for absences due to the illness, injury, or medical appointment of certain eligible family members. While it does not entitle employees to any additional time off from work, it protects the use of already available sick leave benefits.
•The Cook County and Chicago Paid Sick Leave ordinances grant certain eligible employees up to 40 hours of paid sick leave per year, which can generally be used for the employee’s or the employee’s family member’s illness, injury, or medical treatment, closure of a place of business, school, or childcare center due to a public health emergency, or if the employee or the employee’s family member is a victim of domestic violence, sexual violence, or stalking.
•Employees in Illinois can also make claims under the Cook County Human Rights Ordinance and Chicago Human Rights Ordinance, which also contain additional protected categories.
•Illinois, Cook County, and Chicago all have their own minimum-wage laws — each mandating a different minimum wage for eligible employees.
•Illinois law requires meal breaks for most employees. The provisions regarding such breaks can be found in the “One Day in Seven Rest Act.”
•Illinois also has a “ban-the-box” law, the Job Opportunities for Qualified Applicants Act. Under this law, Illinois employers with more than 15 employees cannot inquire into an applicant’s criminal history until the applicant has been deemed qualified for the position and notified that he or she has been selected for an interview; or if there will not be an interview, until a conditional employment offer is made to the applicant. There are some exceptions to this law, so be sure to read it before providing advice.
•Cook County has its own ban-the-box ordinance which applies to all employers not subject to the Illinois JOQAA that have one or more employees and conduct business or have a principal place of business in Cook County. Not to be outdone, Chicago has its own ban-the-box ordinance, which also expands the JOQAA to smaller employers.