Illinois Supreme Court Overlooks Waiver; Rule 318 trumps 315

A legal malpractice action spawned a dispute over whether a law firm waived crucial arguments concerning due process and damages. The firm did not include those points in its petition for leave to appeal. The Illinois Supreme Court has already ruled that failure to raise an issue in the PLA may be deemed a waiver of that issue. (Look at Central Illinois Light Co. v. Home Ins. Co., 213 Ill. 2d 141, 152, No. 96978 (2004). So the client claiming malpractice moved to dismiss the law firm’s appeal of those questions.

But in this appeal, the client filed a separate PLA. The court resorted to Illinois SCR 318, which allows an appellee to “seek and obtain any relief warranted by the record on appeal without having filed a separate petition …” The Illinois Supreme Court denied the motion to dismiss and said the law firm could rest on Rule 318 to raise the issues it did not include in its own PLA. See the whole case here, Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, Nos. 99584, 99595 (2006).

(Caesura – This is the case that ruled a legal malpractice plaintiff, in its lawsuit against the law firm, cannot obtain punitive damages that may have been available in the underlying case.)