Alex S. Moe


Substitutions of judge in Illinois civil proceedings are characterized as a right, but that was not always the case. Under prior versions of the substitution statute, judges could deny a substitution request if the party seeking it had “tested the waters,” or had a chance to determine the judge’s opinion as to an aspect of the case’s merits. The modern substitution statute grants each party one substitution as of right, largely displacing the “testing the waters” doctrine. Our appellate courts today are split on the issue of whether the doctrine is still viable: while most apply it without questioning its validity, the Fourth District has rejected the doctrine as fully obsolete, holding that it serves no purpose to fulfill the letter or spirit of the modern substitution statute.

This Article proposes that the “testing the waters” doctrine, while uncommon today, still has a place in Illinois at the margins of equity, permitting courts to deny an otherwise proper substitution where a strict application of the statute would be abusive or unfair. The modern “testing the waters” doctrine can be applied in the same manner as it has been historically, but it has new relevance in today’s complex civil litigation. By looking to the totality of the circumstances surrounding a substitution, the doctrine gives courts a way to curb procedural abuses of the statute. Whatever its application, a modern doctrine should be narrowly applied, for reasons of practicality and public policy. Though “testing the waters” remains a niche doctrine, there still is, and should be, a place for it in Illinois civil proceedings.

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