One type of 'frivolous' lawsuit & two sets of results

Third in a series inspired by the U.S. Chamber of Commerce's charges that "Illinois has one of the five worst legal climates in the nation." Prior entries here and here.

The Chamber of Commerce folks would probably agree that "soft tissue" cases are often "frivolous."

Certainly a lot of them are -- and it's nothing new. Go back and read the old Sun-Times series, "The Accident Swindlers" -- a Pulitzer finalist in 1981 for Pam Zekman, Gene Mustain, Gilbert Jimenez, Norma Sosa, Larry Cose, Patricia Smith and John White.

The insurers clamped down on these cases after the "Accident Swindlers" series; by the 1990's a couple of major insurers were suing attorneys and doctors and chiropractors on RICO theories because they thought them guilty of conspiring to fabricate or at least inflate damages in "soft tissue" cases.

But flimsy soft-tissue cases still exist. I know this because I get calls at my office at least once a month from 800 numbers asking if I'm "interested in handling personal injury cases in Illinois." (Somebody must be responding to all those lawyer commercials on daytime and late night TV.) I also know this because I sit as an arbitrator in the Cook County Court Annexed Arbitration Program several times a year and I see them.

It is well documented that lawyer-arbitrators have been more generous in these cases than juries -- yes, even in Cook County, even though the Chamber of Commerce or the American Tort Reform Foundation types are certain that the typical Cook County juror is just itching to hand out large stacks of corporate money.

I would argue that the biggest single reason for the discrepancy in damage awards is Supreme Court Rule 90: More often than not, the arbitrators hear difference evidence than the jurors. In the same case.

In arbitration, if a party complies with the notice requirement of Rule 90(c), all sorts of documents are "presumptively admissible... without foundation or other proof." But Rule 90 does not apply at trial: Medical records and bills that are automatically admitted at arbitration may never see the light of day at trial. It's pretty easy to see why a proceeding where the bills are in evidence will result in a bigger award than a proceeding where the bills are not.

In December 2003, Rule 90 was amended to require a plaintiffs to specify whether their medical bills are paid or unpaid. In general, when evidence is admitted in a personal injury suit, by testimony or otherwise, that a medical bill was for treatment rendered and that the bill has been paid, the bill is deemed prima facie reasonable. The idea is simple: People don't pay for what they don't need.

I'm guessing -- because, in my experience as an occasional arbitrator I see 90(c) packages which do not specify whether the proffered medical bills are paid or unpaid -- that defense counsel are not routinely moving to strike 90(c) packages which fail to make this clearly required delineation. The Supreme Court has stated in a number of contexts that its rules "are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written." Roth v. Illinois Farmers Ins. Co., 202 Ill.2d 490, 782 N.E.2d 212, 215 (2002), quoting Bright v. Dicke, 166 Ill.2d 204, 210, 652 N.E.2d 275 (1995). See also, P.R.S. International, Inc. v. Shred Pax Corp., 184 Ill.2d 224, 703 N.E.2d 71, 76-77 (1998), and Robidoux v. Oliphant, 201 Ill.2d 324, 775 N.E.2d 987, 991 (2002). I would therefore assume that such motions, if made, would be favorably received.

That still won't close the gap between what arbitration panels award in "soft tissue" cases and what juries award -- because the arbitrators will still see the bills, although they will feel more free to disregard unpaid bills as not "reasonable" -- but I'll bet it would narrow it. To the extent that the rule is being followed (and it is, but not always), I would venture to predict that the gap has already been narrowed from the wide discrepancies noted only a few years back.

Enforcement of the rule would surely hold down awards in many "soft tissue" cases -- the bills are seldom paid.

The point of this lengthy example is to show that rules matter. It's not that arbitrators are "liberal" and Cook County juries are not, it's that the two groups often reach different results in the same case because they consider different evidence, not because of some partisan approach. Different rules apply; different results obtain.

When the U.S. Chamber of Commerce or the American Tort Reform Foundation decries "liberal" judges, they do both the judges and the public a disservice. What these groups are really exercised about are, more often than not, rules or statutes. That should be the focus of their efforts.

But then they'd have to admit they're lobbying.