More on 'jackpot justice' and 'frivolous' lawsuits

I would like to expand upon yesterday's post about the U.S. Chamber of Commerce's claims that Cook County has "the second worst legal environment in the country" and that there are "growing lawsuit abuse problems in Cook County courts."

I am not now and never have been a card-carrying member of the Illinois Trial Lawyers Association. Although I have worked with and for plaintiff's attorneys on occasion (some of whom were and are ITLA members), for most of my 28 years in practice, I've represented insurance companies -- a type of business particularly unpopular among many judges. So when the Chamber or some other business group claims that some judges are inclined to be unfriendly toward (pick one) doctors, businesses, insurers -- I can't say they're entirely wrong.

It is my belief, however, based on experience, that this results more in differences of approach than outcome. One judge, whom I greatly respect, and who has long since retired, was particularly not fond of insurance companies. I appeared before him many times over the years on contested motions.

Sometimes this judge would come out on the bench smiling and complimentary. He'd make a point of saying, on the record, what a fine brief I'd written, what a good argument I'd made -- and then he'd rule against my insurance company client. But, if he came out on the bench red-faced and irritated -- I had a good chance of prevailing. He might not have liked insurers generally or my clients in particular -- but he would follow the law where it led him and he'd have a reasoned explanation for any decision he made, for my client or against.

Judges who follow the law provide the best defense against real "lawsuit abuse." There can be -- and surely are -- suits that even the staunchest ITLA member would agree are "frivolous." And §§2-615 and 2-619 of the Illinois Code of Civil Procedure provide a quick and relatively easy means of disposing of such suits. If a case is particularly frivolous, judges may award sanctions -- monetary penalties against a party or its lawyer -- under Supreme Court Rule 137.

What non-lawyers should keep in mind in evaluating the "jackpot justice" and "judicial hellhole" claims made by business interests, is that these groups have a more expansive idea of what constitutes a "frivolous" lawsuit than just those which are subject to dismissal on motion. It's not just uninformed or "liberal" judges who let these kinds of "frivolous" suits come to trial: The most rock-ribbed, blue-blooded, conservative judge might also find herself obligated, under the law, to reject a challenge to the legal sufficiency of a certain suit -- but the Chamber would still deem that suit "frivolous." What it comes down to is this: These organizations are really more upset with certain laws themselves, rather than the way judges apply the laws.

Rather than try and construct a theoretical model of the many different kinds of law and precedents that the Chamber and its allies might consider as giving rise to "frivolous" litigation -- an essay that would be boring to read and probably inaccurate to boot -- I will try and illustrate the idea with a specific category of case... in my next post.