Saturday, June 23, 2012

Arbitration participant's specific questions and some general answers

There's a disclaimer on this blog that reads, in pertinent part, as follows:
Nothing in this blog is meant to create, nor should it be construed by you as creating, an attorney-client relationship. Sending an email to this blog or leaving a comment to a post does not create, nor should it be construed by you as creating, an attorney-client relationship.
Nevertheless, someone identified as "MC" left a question on an older page two post recently. MC's questions, lightly edited:
I went to an arbitration hearing the other day. I was the plaintiff in a small property-damage claim, against a substandard carrier. I presented my side to the arbitrators as did the defendant. I was not aware of Supreme Court Rule 90(c) until after the arbitration meeting. The arbitrators never asked me for a copy of the repair estimate I had with me. After the arbitration meeting, the clerk at the Skokie Courthouse told me that I had won, but that the award was zero dollars because I did not prove damages. If I reject the award, will the same arbitrators be involved in reviewing the 90(c) package that I will be submitting? Why didn't any of the arbitrators ask for my damage estimates?
If MC has these kinds of questions about court-annexed arbitration in Cook County, others may as well.

Failure to be aware of Rule 90(c). "[A] party who chooses to proceed pro se must comply with the same rules of proceedings as an attorney." Paddock v. Department of Employment Security, 184 Ill.App.3d 945, 540 N.E.2d 1053, 1055 (1st Dist. 1989). "A pro se litigant while traversing the procedural minefield of litigation is bound to strict compliance with the requirements of the statute." Dolido v. Zenith Radio Corp., 194 Ill.App.3d 268, 272, 550 N.E.2d 1225 (1st Dist. 1990). "While reviewing courts are open to all persons who seek redress of their grievances, a party's decision to appear pro se does not relieve that party from adhering as nearly as possible to the requirements of the rules of practice enunciated by our supreme court," Peeples v. Johnsburg. 403 Ill. App. 3d 333, 335, 932 N.E.2d 612 (2nd Dist. 2010, quoting McCutcheon v. Chicago Principals Association, 159 Ill. App. 3d 955, 960, 513 N.E.2d 55 (1st Dist. 1987).

In other words, folks like MC are free to proceed without a lawyer ("pro se" merely means "for oneself") but they are assumed to know everything that a lawyer should know about how to conduct their hearing. Think about that: Lawyers have years of specialized education and must pass a licensing exam. And not all lawyers are equally comfortable in court; there are many, many great lawyers who would be completely lost in a courtroom... or even at an arbitration. So... people are free to represent themselves in an arbitration, but is it really a really good idea?

Rule 90 is no magic talisman. What Rule 90(c) does is provide a streamlined method for the introduction of evidence at -- and only at -- the arbitration hearing.

The rule is not meant to confer an advantage on either party; it's purpose is to allow a complete case to be presented and decided in a two-hour window. As a practical matter, especially in personal injury cases, it makes it much easier for plaintiffs to present their proof. If the requirements of the rule are met, medical records and bills are presumptively admitted; there's no need to try and get a doctor to come in and testify, because the doctor's diagnosis, treatment, and prognosis are all in that neatly arranged, page-numbered 90(c) package. (That's a huge reason why there is such a discrepancy between amounts awarded at arbitration and trial: In smaller cases, it's difficult, and sometimes impossible -- at least financially -- to get a doctor in to authenticate records, and without the automatic admissibility of 90(c), a lot of the stuff that's right there for the arbitrators to see is never seen by the judge or jury at trial.)

The arbitrators never asked me for a copy of my repair estimate. Maybe it's different on Judge Judy or The Peoples' Court, but at an arbitration hearing, the parties are responsible for presenting their own case.

I believe arbitration is statewide now but, when the program came to Cook County, it was as part of the first expansion of the concept from a pilot program in Winnebago County. I was in the first class of Cook County arbitrators somewhere around 20 years ago; our training materials included a video from Rockford. If I recall correctly, the arbitrators in the videos asked a lot more questions than was ever customary in this jurisdiction. But these questions were meant to clarify or assist the arbitrators' understanding of the facts presented; there was never a suggestion that arbitrators should ask questions that would lead a party through his or her case-in-chief.

A timely rejection of an arbitration award gets a case back on the trial call. There is no second chance at arbitration. The streamlined procedures of Rule 90 will not apply at trial. And if it is difficult for a party to represent himself or herself at an arbitration, it is that much harder to proceed pro se at trial.

Conclusion. We live in interesting times. While many new law school graduates are begging for jobs, and with lots of lawyers at all experience levels hurting for business during this never-ending recession, the Illinois Supreme Court has just adopted Rule 10-100, creating a Commission on Access to Justice "to promote, facilitate, and enhance equal access to justice with an emphasis on access to the Illinois civil courts and administrative agencies for all people, particularly the poor and vulnerable."

It seems there are more lawyers, and more people needing lawyers, than ever.

It might be good to figure out how to get these folks together in ways that would benefit all of them.


Anonymous said...

Two different issues: proving damages at the arb and the 90c.

Yes, the 90c makes it a lot easier. But you can still prove your damages at trial even if you have not done a 90c. You just lay the foundation for the bill, or whatever, during the arbitration. Then it's in. The 90c allows for the introduction of material without laying the keeper of the records, or specific foundation, but you can still do so, of course.

Now my bigger pet peeve: why do insurance companies use estimates when they've paid the claim? Where are the paid bills? checks?

Jack Leyhane said...

Anon, I've sat on many arbitration panels over the years and I've heard a lot of PD-subro cases. I'm willing to admit there may have been exceptions, but it seems to me that the insurers seeking subrogation have generally included copies of their checks in their 90(c)s. For many of these small cases, the initial body shop estimate is the document from which payment is made after insurer approval. In more significant crashes, there is often an add-on estimate after the car is examined more closely and the damaged pieces on the surface of the vehicle are removed -- but approval is obtained and the repairs are made pursuant to the estimate and the check is cut. What sort of cases have you seen that are different?

And, yes, you can lay foundations at an arb for many things and have them admitted -- but how about unpaid medical bills?

Speaking as an arbitrator, I agree that you can lay a foundation for items already included in your 90(c) -- but why would you want to spend your limited time doing that? Better to walk your panel through the 90(c) materials in your close and show how the documentation supports the testimony adduced at the hearing. At least that's my opinion; others may disagree.

Speaking as a blogger, Anon, I think you may have broken this blog's record for time between posting and the leaving of a substantive comment -- just over four years! I get comments to old posts all the time... but most of these are peddling mail-order pharmaceuticals or high-fashion knockoffs... or they're in a Cryillic script I can't decipher. So, thank you, Anon, for finding, and substantively responding to, this post.