While law school taught us much about rules of procedure, one thing my studies didn’t cover was what to do when a client dies during the litigation process. Indeed, having been in practice since 2006, this issue has never crossed my path – my representation and legal counsel ended with a smile, handshake and pat on the back to my clients, all very much alive.
Last month, though, this sad reality fell upon me in which a client unexpectedly passed away as we were in the settlement phase of his litigation. While the analytical gears in my mind shifted to probate law and its various components, research into my next step pointed me in a different direction toward one that that started with a “suggestion of death under the record.”
My initial thoughts was, “Suggestion of death?” since my client’s passing was more of a fact than suggestion, but yes, that is what the legal world labels such a situation.
Federal Law When a Client Dies
When a client unexpectedly dies during the litigation process, the court must be placed on notice of this material development of the case. To do this in federal court, the controlling law is found in the Federal Rules of Civil Procedure (“FRCP”) Rule 25(a). Fed. R. Civ. P. 25(a). Under this rule, if the claim is “not extinguished and a party dies,” the court has the discretion of ordering substitution of the proper party. Fed. R. Civ. P. 25(a)(1).
Step One: Statement of Death
Counsel’s first step is filing a statement noting the death called a “suggestion of death under the record.” Fed. R. Civ. P. 25(a)(3). Although the FRCP do not require proof of death to be shown through a death certificate or other means as an exhibit, local rules or a judge’s own rule might approach this differently. As a practical matter, counsel should include the name of the deceased, the date of death, the county where the death occurred, whether the deceased died intestate or not, and whether there is a known successor or representative. The impact of this filing is that the court stays the matter for 90 days giving time for a motion for substitution to be made.
Step Two: Motion for Substitution if Appropriate
A motion for substitution may be made by any party to the lawsuit or by the decedent’s successor or representative. Fed. R. Civ. P. 25(a)(3). The filing deadline is 90 days after the suggestion of death for the record has been filed. If this motion is not made within this timeframe, the court is required to dismiss the action by or against the decedent.
If, after a party’s death, there are remaining parties to the lawsuit, the action “does not abate” and, instead, it proceeds forward “in favor of or against the remaining parties.” Fed. R. Civ. P. 25(a)(2). Also, even though the action proceeds forward, the record should reflect the party’s death. Id.
In terms of service, all of the above filings (suggestion of death upon the record, motion to substitute and accompanying notice of hearing) must be served pursuant to Rule 5 as to the parties and Rule 4 as to nonparties. Fed. R. Civ. P. 25(a)(3).
Illinois Law When a Client Dies
When a client dies during the litigation process in Illinois, state law is somewhat similar to federal law. The primary difference is that the statute’s language appears focused more toward maintaining the action in which a party has died. The governing statute is 735 ILCS 5/2-1008(b) which, like its federal counterpart, addresses substitution of parties. Also like its federal counterpart, the court must be informed of the party’s passing through “suggesting the death of record.” 735 ILCS 5/2-1008(b)(2).
Probate Law Overlap
This statute includes probate law language, so familiarity with this area of law is necessary to fully understand the statute’s mandates.
Pursuant to the statute, in the event that no petition for letters of office for the decedent’s estate has been filed, the court has the discretion of appointing a special representative for the deceased “for the purpose of prosecuting the action.” 735 ILCS 5/2-1008(b)(1). The special representative then has a number of enumerated responsibilities as they relate to notifying heirs and legatees.
If the person who died was the defendant, Illinois law requires the deceased’s personal representative to be substituted as a party. 735 ILCS 5/2-1008(b)(2). If no petition has been filed for letters of office for the deceased’s estate, the court has the discretion of appointing a special representative “for the deceased party for the purposes of defending the action.” Id. This can only be done, though, upon motion of a person bringing an action and after proper notice. Id.
Differing from federal law, if a motion to substitute is not filed within 90 days after the death is suggested of record, the Illinois court may dismiss the action as to the deceased party. Id. The discretionary language indicates that it is the court’s determination as to whether the 90-day limit would be strictly followed or not depending upon the case at bar.
Staying Mentally Healthy When a Client Dies
The death of a client certainly brings its own additional, separate rough waters to navigate, both personally and professionally as legal counsel. Ensuring good mental health not only serves the individual and those within that person’s circle, but, equally important, it serves those affected by the loss of a loved one as well as the remaining litigation process that the deceased left behind. Clarity of thought, empathy, patience, and understanding are much needed qualities under these circumstances and yet they can easily and imperceptibly be lost during times of difficulty. This post offers tips to staying positive during difficult times, albeit in the context of COVID-19, which you may find useful.
Final Thoughts
If counsel’s case is in federal court, the FRCP makes it fairly easy to notify the court of this development and to either end the lawsuit after 90 days or continue it, whichever the case may be.
If counsel’s case is in Illinois court, then it would wise to review the governing statute carefully and, if warranted, discuss your situation with a colleague familiar with probate law to ensure your understanding is accurate. As to cases in other state jurisdictions, it is important to review that state’s law, beginning with substitution of parties.
Additional Resource: Federal Rules of Civil Procedure
Disclaimer: The above is provided for informational purposes only and is not intended to serve as legal advice. Seek legal advice only from an attorney. Feel free to contact us should you have any questions or would like to schedule a consult.
