A recent revision to the Jury Demand statute, Section 2-1105, was rushed through the Illinois legislature in November of 2014 and reduces the number of jurors from 12 to 6 in all civil cases. The revised statute becomes effective on June 1, 2015. A defendant in any case filed before June 1, 2015 may still demand a jury of 12 “upon proof of payment.” Therefore, in all cases filed before June 1, 2015, a defendant continues to have the right to a jury of 12 as long as the defendant can provide proof that he has paid for a jury of 12. In all pending cases where a defendant has already requested a jury demand, the defense attorney needs to make sure that proof of payment (receipt) has been retained in order to guarantee a trial by 12 jurors. In those cases where the defendant has not requested a jury demand, (relying on plaintiff’s or co-defendant’s jury demand), defense counsel should prepare a Motion for Leave to File a Jury Demand for 12 jurors. Leave is necessary since ordinarily “a defendant desirous of a trial by jury must file a demand therefor not later than the filing of his or her answer.” (2-1105(a)).
There is now risk to relying on another party’s jury demand. Plaintiffs might indicate at any time before trial that, while they initially requested a jury of 12, they now desire only 6. Without a jury demand for 12 paid for by your defendant, you may be without recourse. The revised statute now creates a risk to defendants that did not exist at the time defendants elected to answer and not file a jury demand, justifying a request at this time. We anticipate that there will be a large volume of similar motions filed and that the circuit courts will likely arrive at a global solution as to their handling.
With respect to cases filed on or after June 1, 2015, defendants should continue to file jury demands for 12 person juries. This will preserve a defendant’s ability to raise a constitutional challenge to the revised statute. The six person civil jury may not survive a constitutional challenge based upon the language of the Illinois Constitution which provides that “the right of trial by jury as heretofore enjoyed shall remain inviolate.”
Most defense attorneys agree that persuading twelve jurors rather than six increases the plaintiff’s burden and enhances the possibility of a defense verdict or hung jury. Constitutional challenges to the revised Section 2-1105 are expected.