The American Tort Reform Foundation is out with its annual
Judicial Hellholes report and, once again, Cook County fares poorly in the ATRF's estimation. The good news, I suppose, is that we dropped a notch this year:
Last year, we were number 6. This year, we're no. 7.
This year, Cook County is lumped in with Madison County for the dubious 'hellhole' honor.
I have nothing to say about the ATRF's critique of Madison County as "the national epicenter for asbestos litigation." I'll leave that to some blogger in Edwardsville. However, one can't help but notice the prominent place asbestos litigation has in the ATRF's complaints about most of the jurisdictions on its hellhole list.
At least the ATRF doesn't mention asbestos in connection with County Cook. Instead, the report charges (p. 40):
Cook County continues to host a disproportionate amount of the state’s litigation and is known for large verdicts. Recent studies have shown a “litigation explosion” in the county, accounting for roughly two-thirds of Illinois’ major civil litigation, even though a significantly smaller fraction of the state’s population lives there.
The charge is repeated from last year's report; the linked report (to a
Illinois Civil Justice League report from April 2015 titled "Litigation Imbalance III" and subtitled "Revealing Trends in Court Dockets Demonstrate Lawsuit Abuse in Select Counties") is the same as it was last year, too.
The basic concern is that more "major civil litigation" is filed in Cook County than in adjacent counties -- and the disparity is more than can be accounted for by population alone.
"Major civil litigation" appears to be the report's name for Law Division cases -- in other words, not just tort cases, but contract cases and collection cases, too. However, some "major civil litigation" cases can not be filed other than here in Chicago. For example, there is no commodity litigation outside County Cook; Downstate farmers who try and hedge their risks in futures trading are required to litigate their disputes in Chicago. That fact has to do with contract language and
nothing to do with the local PI bar. Because many huge corporations have national or international headquarters in Cook County, all sorts of disputes arising from national and international trade can be heard in Chicago; these are not likely to be properly venued in courts Downstate. But even with these built-in factors to boost Cook County case filing totals, there simply aren't as many cases filed in the Law Division as there were in days of yore. Not even close.
I've heard Cook County insurance defense lawyers complain that tort filings here are in free fall. One of these, who works for a 'captive' law firm (meaning he is an employee of the insurance company whose insureds he defends), suggested that the many case management conferences in Law Division cases nowadays are scheduled to make up for the dwindling number of cases -- it gives the judges something to do, that lawyer told me. (I'm not endorsing this view, mind you; I'm merely reporting that it exists.)
At one time, in comparable cases, it was pretty well agreed that Cook County juries were more generous than their neighbors in the surrounding counties.
The ICJL report linked to the ATRF hellhole report contends that this is still the case and offers this table in support:
But did you notice? According to this table, juries in the four collar counties (McHenry was left off for some reason) found for plaintiffs more often, on a percentage basis, than juries in Cook County.
Even
if we could look at injury cases alone, it wouldn't take that many cases involving malpractice at a teaching hospital to swell the average verdict totals here. There are some great hospitals in the farthest reaches of the six county metro area. But the best hospitals, handling the most difficult cases, are in Chicago or nearby suburbs. The largest potential malpractice exposures, therefore, are also right here in Cook County. Also, in catastrophic injury cases, the necessary treatments may be available only here. A catastrophic injury case might arise Downstate, but between medical treatment and the residence of corporate defendants, the case may be properly venued here. And we can't just look at injury cases alone: Millions of dollars can be at stake in commercial cases that can't be filed except in Chicago. All of these might inflate our 'average' verdicts without proving that our juries are still more generous than those elsewhere. Granted, if I had a good auto liability case, with reasonable medical bills, and the choice of proceeding in Cook County or one of the collar counties, I'd probably still want the case filed in Chicago. But if a gap in comparable cases really remains, it is narrowing -- and it's nowhere as big as this chart suggests. I don't think the ATRF is comparing apples with apples here.
The ATRF also condemns Cook County judges generally (p.41):
Judges consistently display a pro-plaintiff bias and a disregard for truth and fairness. The Cook County court has been plagued by unqualified and unethical judges, yet somehow most continue to be reelected.
Offered in support of this grave charge are the cases of Judge Jessica A. O'Brien and former Judge Richard C. Cooke.
I do not pretend to know whether the pending mortgage fraud charges against Judge O'Brien are well-founded. I do know, however, that Judge O'Brien's alleged misdeeds are alleged to have occurred before her election. I won't say that I'm outraged by the ATRF's gratuitous insult to the character of the hundreds of other Cook County judges on account of what O'Brien may have done before getting on the bench; "outrage" and "outrageous" are words that are so overused in the world today that these need to be retired from the vocabulary of serious persons. But I will say that trying to tar the Cook County bench as a whole on account of the charges against Judge O'Brien is anything but persuasive.
Nor is the ATRF's charge made more persuasive by throwing former Judge Cooke into the mix. Yes, Cooke refused orders to report to Traffic Court following his election. Again, I don't pretend to know all the details of, or motivations leading to, the standoff and Cooke's eventual resignation. But I am very, very sure that the ATRF is way off base when it speculates (p. 41) that, because Cooke "had contributed nearly $70,000 to the campaigns of other judges, perhaps [he] thought he would draw a more desirable civil court assignment."
As the hellhole report charges, and as FWIW already know, Cooke had a lot of money at his disposal when he ran for the bench -- but it was his own money. He didn't need money from "personal injury lawyers," an appellation that is somehow always rendered with a sneer in the ATRF hellhole report. The report complains (p. 41) that personal injury lawyers spend millions to encourage "Illinoisans to sue over anything and everything, clogging the county courthouse with litigation that invariably delays justice for those with legitimate claims" and then reinvest some of their fees to "contribute millions to Cook County judges’ election campaigns, hoping to cultivate a plaintiff-friendly bench." You'd think, given this stated concern, the ATRF would be rooting for more men and women like Judge Cooke to come forward for judicial service, people who don't need to take the money that the ATRF thinks the PI bar throws around.
I wish the ATRF would read this blog more often: Even the fundraising posts might calm the ATRF's fears. Yes, prominent personal injury lawyers (no sneer) sponsor some fundraisers -- frequently in conjunction with prominent insurance defense attorneys (likewise no sneer) -- and many times for candidates who are working, or who have worked,
for insurance defense firms. I personally have serious problems with lawyer advertising -- which I will address in a future post when time permits -- but not because it 'cultivates' a 'plaintiff-friendly bench.'
Readers may have noticed that
only Cook and Madison Counties are singled out in this year's hellhole report while, last year, the ATRF also included St. Clair County in its crosshairs. The ATRF hellhole report does not explain why St. Clair County got a pass in the current report.
Now, I'm not one of those persons who argues that everything is fine
here just because things are worse some place
else... but it's been a rough few years for the judiciary in the 20th Judicial Circuit and St. Clair County in particular.
I wrote
earlier this year about Judge Ronald Duebbert, elected in 2016 and banished almost immediately to administrative duties because his sometime roommate, a convicted felon, paroled after serving time for the battery of a pregnant woman, was arrested on a new charge of first degree murder, that crime occurring not even four weeks after Duebbert was sworn in.
There wouldn't have been a vacancy for Duebbert to be elected to in the first place, but for the fact that the Chief Judge of the 20th Circuit, John Baricevic, was one of three 20th Circuit judges to bypass retention by resigning from the bench and seeking to remain in judicial service via the contested election process. (Duebbert defeated Baricevic in the 2016 election.) You might not figure out why Baricevic
et al. chose this path from
Cook v. Illinois State Board of Elections, 2016 IL App (4th) 160160, the case that allowed them to try, but a major part of the motivation was the judges' belief that, as general election candidates, they could more freely defend themselves and their records after a newly appointed associate judge, a former St. Clair County Assistant State's Attorney, was found dead, from a cocaine overdose, at the hunting lodge of a fellow judge (the judge who presided over the circuit's drug court cases) -- and who was himself arrested soon thereafter for heroin possession.
See,
Death of a Downstate judge, downfall of another.
Anyway, Judge Duebbert was back in the news recently when, according to Beth Hundsdorfer, in the December 1 edition of the
Belleville News-Democrat, he waived a preliminary hearing on "felony charges of criminal sexual abuse and intimidation, along with misdemeanor charges of battery and solicitation of a sex act." These, by the way, have nothing to do with the judge's roommate, or the judge's texts to said roommate the day before the murder, or to the judge's lengthy visits to said roommate in prison but, rather, to charges that Duebbert, in November 2016, after his election to the bench, but before he was sworn in, grabbed "a male client's genitals and [offered] to reduce a legal fee by $100 if the man would perform oral sex on him." (
See also, "Marion County judge picked to preside over Duebbert criminal case," by Beth Hundsdorfer, in the November 18, 2017
Belleville News-Democrat.) According to Hundsdorfer's reporting, obstruction of justice charges against Duebbert that are related to his alleged contacts with the sometime roommate also remain possible.
The Cook County court system is not perfect. Far from it. Some judges are better than others, just as some lawyers are better than others and some plumbers are better than others and some chefs are better than others. Pick any trade or profession you wish: Some will be better than others. Some judges come to our bench with less than stellar qualifications. Some of these will turn out to be great judges. Some lawyers with seemingly great qualifications will turn out to be poor judges. As with investments, so too with judges: Past results do not guarantee future performance.
But ATRF does not make a convincing case for Cook County as a "judicial hellhole." I suggest that persons or groups looking to "reform" our court systems, such as ATRF, would better serve their stated objective by working to make the decisions issued by our judges more predictable, certain, cost-effective and fair rather than by unfairly damning whole court systems.
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