A Cautionary Tale: The Fine Line Between Practicing Civility In Law And Giving Up Your Client’s Rights

July 28, 2017 / Writing and Speaking


A recent decision by the Illinois Appellate Court, Second District, illustrates the fine line attorneys must walk between showing civility and extending courtesies to opposing counsel on the one hand and unwittingly giving up valuable client rights on the other. The decision in Kantner v. LaDonna Jo Waugh, 2017 IL App (2d) 160848, provides a blueprint on how to navigate this minefield.


Plaintiff filed a two-count medical malpractice suit against defendant with one count alleging lack of informed consent and the other count alleging negligence. The informed consent claim was involuntarily dismissed on defendant’s motion. Plaintiff proceeded to trial on the negligence claim.

On the day trial was to begin, plaintiff’s counsel came to court advising everyone that she had recently been the victim of domestic abuse and had a battered and bruised face. Plaintiff’s counsel did not want to continue with the trial under that condition and asked for a continuance. Defendant objected to the continuance but agreed to allow a continuance to occur if plaintiff would pay the expert witness fees that might be charged for the witnesses being cancelled. Plaintiff’s counsel balked at the payment of such fees and defendant then offered to not object to a motion to voluntarily dismiss the case, advising plaintiff they would not seek any reimbursement of costs “now or upon refiling.” The trial court assured plaintiff’s counsel that he would set the case for trial immediately upon refiling, since there was no more discovery to conduct. Defendant’s counsel agreed to prepare the Order granting plaintiff’s motion to voluntarily dismiss the negligence claim and that Order, as drafted by defendant, stated “On plaintiff’s oral motion and by agreement of the parties the case is voluntarily dismissed pursuant to statute … with no costs assessed.” The Order did not include the words “upon refiling.”

Plaintiff’s counsel thereafter refiled the negligence claim but defendant then moved to dismiss the negligence claim, arguing that plaintiff had violated the res judicata doctrine’s rule against splitting claims enunciated in the Illinois Supreme Court’s decision of Hudson v. City of Chicago, 228 Ill. 2d 462 (2008). Per Hudson, defendant argued that the involuntary dismissal of plaintiff’s informed-consent claim, followed by the recent voluntary dismissal of the negligence claim, barred a subsequent refiling of the negligence claim. The trial court granted defendant’s motion and dismissed the negligence claim.

The Appellate Court’s Decision: Defense Counsel’s Conduct Implied That Defendant Would Not Object to a Refiling of the Claim Based on Res Judicata

The Appellate Court, Second District, reversed the dismissal of plaintiff’s negligence claim and remanded the case back for a full trial on the claim. According to the Appellate Court, there are various exceptions to the res judicata doctrine’s rule against claim splitting, one of them being that the parties have agreed in terms or “in effect” that the plaintiff may split claims. The Appellate Court found that in this case the parties agreed “in effect” that the plaintiff could split claims and thus separately try the negligence claim.

The Appellate Court found the following facts dispositive for its conclusion that defense counsel

impliedly agreed to allow plaintiff to refile the negligence claim without objecting on res judicata grounds:

  • Defendant suggested that plaintiff dismiss and refile;
  • The Court told plaintiff that the suggested course of action would result in an expedited trial and would be advantageous over a continuance because no fees would be assessed; and
  • defendant failed to correct anything the Court said, even offering to draw up the written Order.

According to the Appellate Court, in the context of a discussion about how plaintiff’s counsel could bring her case to trial without incurring costs, “defendant suggested that plaintiff voluntarily dismiss and refile.” Plaintiff’s counsel sought and was  given assurances that the claim could

be refiled and proceed to trial. Under these circumstances, the Appellate Court found that defense counsel in effect agreed to allow the refiling to occur without any res judicata objections:

Defendant in this case clearly did more than remain silent as to the issue of refiling. For the reasons stated above, in context, defendant’s conduct implied they would not object to a refiling based on res judicatas rule against claim splitting.

Learning Point: Oftentimes, the best strategy in litigation is to extend courtesies to opposing counsel in order to build a relationship that could prove useful to the proper resolution of the matter. Indeed, attorneys today are under a legal obligation to be civil to each other during the conduct of litigation. But counsel must walk a fine line between extending courtesies and giving up rights. As the Appellate Court noted in its opinion: “[u]nder our adversarial system, a defendant is not obligated to stop a plaintiff from making a fatal mistake.” In this case, defense counsel should have said nothing other than to object to a continuance or, if a voluntary dismissal order was to be entered, reserve the defense rights to attack any refiled claim on res judicata grounds. And if defense counsel was not being purely altruistic, but thought they could “sandbag” plaintiff’s counsel into making a fatal mistake by voluntarily dismissing the negligence claim, the Appellate Court’s opinion shows that the Appellate Court would not tolerate that outcome.

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