Courts in my area (DuPage, Kane, and Kendall County, Illinois) are almost entirely closed through the end of April, and most have already announced that they will be closed for at least part of May. However, judges are still hearing issues on essential cases. The question, then, is what constitutes an essential case?
There are categories of cases to consider: the obviously essential cases, the not-so-obviously essential cases, and the almost-certainly-not essential cases.
Obviously Essential Cases
Cases that are clearly essential are cases involving criminal defendants that are in custody or on a speedy trial demand. I’m not going to go into a lot of detail on those, but I think it’s pretty obvious why they are essential.
Other cases that are pretty clearly essential, though not as obvious as the criminal cases, are cases involving orders of protection or abuse and neglect. Outside of a pandemic these cases are not normally fast-tracked and have been known to drag on for months. However, they deal with possibly permanent harm done to children and others and are, therefore, essential.
Guardianship cases would also qualify as essential in most cases. Especially when the court is dealing with a disabled adult who can’t care for themselves. Delaying those proceedings could mean serious harm to the individual.
Not-so-Obviously Essential Cases
It would seem that all civil cases are not essential, but that’s not entirely true. For example, if two business owners are in a conflict and one starts to sell off joint assets, a court will likely find that to be an essential issue. The judge may agree to a hearing on a temporary restraining order to prevent the sell-off. Though, once that issue is resolved, the case would probably be continued until the end of May.
Collections matters that involve the freezing of accounts could also qualify as essential cases for the court. An individual or a business cannot afford to have their accounts frozen for an extended period of time, especially if they have a meritorious defense.
Many cases dealing with specific performance would qualify as essential. Specific performance occurs when a plaintiff is not seeking money damages, but rather they are seeking that the defendant does some specific task. It could be turning over property or documents. However, to claim that your case is essential you should be prepared to show the judge that damage will occur if the court does not hear the case.
It’s tempting to say that all other cases are non-essential, but I think there is value in discussing some specific examples.
Any claim for money damages might seem essential because people and businesses are under tremendous financial strain and there may not be money to collect in the next few months. For the plaintiff, this would seem very essential. However, I am confident that the courts will not agree. Their position is that there are numerous ways to collect from a defendant that does not rely on them having access to cash or other liquid assets. For example, you could foreclose on property or garnish wages. Although, practically speaking, those options might not be available either due to devaluation of property and loss of jobs.
This also applies to efforts to collect child support. They are, effectively, cases to collect money damages. I seriously doubt that judges will find that they are essential cases.
Discovery disputes will also be considered non-essential. Unless there is risk that discovery will be destroyed, I cannot imagine a court finding a motion to compel to be essential.
The fact is that no matter how important we may feel our cases are, they just aren’t as important as keeping everyone home and healthy. We can go back to fighting about these issues and others in a month or so. Until then, I suggest that we try to solve these problems productively. For example, I have been working with opposing attorneys on discovery issues so that we can avoid the courtroom. Similarly, I have noticed that some people are taking this opportunity to negotiate settlements rather than continue litigation. I think this is a much more productive use of our time, and I hope that it continues after the pandemic has passed.
If you have a case you believe is essential, please let us know. We are happy to help!