Litigation

IS THE RIGHT TO AMEND UNDER 5/2-616 ABSOLUTE?

By Mark P. Loftus, Esq.

Is the right to timely amend a complaint absolute? The provisions of 735 ILCS 5/2-616 of the Illinois Code of Civil Procedure seem to suggest that it is, by noting in subsection [a] that "...at any time before final judgment amendments may be allowed on just and reasonable terms...."

Additionally, subsection [c] notes that "A pleading may be amended at any time, before or after judgement to conform the pleadings to the proofs".

Until fairly recently defense lawyers very rarely challenged my efforts to timely amend complaints. That era of detente however, seems to have ended. Recently, defense lawyers have been objecting to my attempts to timely amend complaints, even when I am not adding new causes of action. The objections typically cite "suprise" or "prejudice", even if the desired amendments are simply adding facts to the complaint that have been discussed extensively in depositions. Defense objections probably are not motivated by actual suprise. Instead they are likely trying to preemptively get a ruling that certain facts can't be discussed at trial.

I expect rulings on several motions to amend in the very near future. I will find out then if I have to tweak my understanding of 5/2-616.

Full post as published by Illinois Lawyer Blog on December 14, 2009 (boomark / email).