Test the Waters Doctrine Sinks

Every litigant in a civil action in Illinois has a statutory right to seek a change of judge without cause. But a judicially created constraint commonly known as the “test the waters doctrine” often limited a party’s ability to invoke the right to change judges. Recently, the Illinois Supreme Court abolished the test the waters doctrine expanding a litigant’s statutory right to change judges without cause, writes Daniel J. Karrison in his May Illinois Bar Journal article, “Test the Waters Doctrine Sinks.”

As it stands now, Karrison explains, any substitution of a judge denied based on the test the waters doctrine can potentially be reversed on appeal regardless of the procedural status of the case. Put another way, even if several years of discovery have proceeded after the denial of a motion, or even a jury trial, a party may have a basis to appeal and potentially vacate any order following the improper denial.

Read the full article, "Test the Waters Doctrine Sinks," in the May 2022 Illinois Bar Journal.