Saturday, January 14, 2017

Cook County makes #6 on ATRF Judicial Hellhole list -- for all the wrong reasons

The American Tort Reform Foundation has issued its annual Judicial Hellholes report and, no surprise, Cook County once again ranks high (#6) on the list of jurisdictions of which the tort reform group has a low opinion.

(The cover art is always spectacular on these reports; it's great to see that artists who formerly designed album covers for head-banging, heavy metal rockers can still find work.)

Cook County is once again grouped with Madison and St. Clair Counties in the Judicial Hellhole Report because (p. 29) "all three are jurisdictions where no civil defendant wants to face a lawsuit."

Really? In which jurisdiction would anyone want to be sued? I have had the privilege of litigating cases in Illinois counties other than Cook -- and not just in the collar counties either. In no case, in Cook County, in a collar county, or Downstate, have I ever hear a litigant say anything remotely along the lines of "here is where I like getting sued."

More specifically, ATRF points out (p. 29), "Cook County hosts roughly two-thirds of Illinois’ major civil litigation, even though only about 40% of the state’s population lives there." The embedded link takes Hellhole readers 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." I perused it to find out what the American Tort Reform Association (and Foundation) mean by "major civil litigation." Near as I can tell, major civil litigation is another way of saying Law Division cases.

In other words, not just tort cases, but commercial cases, contract cases and collection cases, too. 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. 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.

If anything---and this is not just my perception, but something I've heard from other attorneys---tort litigation in the Circuit Court's Law Division is down, way down, in Cook County, and has been trending down for years.

One 'evergreen' area of litigation is medical malpractice. And Cook County has more than its share, arguably, until one considers the fact that all the teaching hospitals are here, and most of the top specialists, too. With all the good things that can happen here, it naturally follows that bad things can happen, too. Nor should it be any surprise that we have developed in Cook County a small cadre---a very small cadre---of extremely good, extremely specialized medical malpractice attorneys. So when the Hellhole report cites (p. 30) "Deiderich Healthcare’s latest annual data on medical liability payouts [showing] that Illinois again led its Midwest neighbors with $258 million in 2015" ($49.7 million more than 2014's total), I can't do more than shrug: Where the most, and most complex, medicine is practiced, it only stands to reason that the largest medical malpractice payouts will be there, too.

But... did you notice? The cited figures aren't broken down by county; we can't tell, from this, how much of this total is properly allocated to County Cook. I'm sure it's a goodly percentage... but it's not 100%.

And the Hellhole report takes an unfair swipe at the Cook County bench, too (p. 30): "Cook County judges deemed unqualified by the bar have nonetheless been retained in elections again and again." The first "again" is linked, in the Hellhole report, to a 2004 letter to the Tribune from former CBA President Roy E. Hofer; the second is linked to a 2010 Tribune article. Not exactly a snapshot of the current bench.

But, more important, the gist of both these linked articles is that the voters in retention elections had rejected the combined wisdom of the bar associations, and returned to office a few judges believed unqualified by the lawyers' groups. On the other hand, at pp. 30-31, Judge Daniel Lynch was singled out for "rare courage" in throwing out a $25 million settlement agreement reached minutes before a jury reached a defense verdict. (The settlement has since been reinstated, but it may be years before this matter is resolved. I express no opinion on anything, although I have never understood why a jury would be allowed to continue deliberating after the parties advise a judge that a settlement has been reached.)

Anyway, having singled out Judge Lynch, the Hellhole report notes that the Chicago Council of Lawyers rated him "not qualified" in the 2016 retention election. "Imagine that," sneers the Hellhole report (p. 31), "sleazy lawyers don't like an 'unorthodox' judge who acts against and seeks prosecutions of those who perpetrate fraud on our civil justice system.... [V]oters who share Judge Lynch's position on lying, cheating and defrauding the courts overwhelmingly returned him to the bench."

Wait a minute... just a couple of paragraphs before Cook County voters were dummies for rejecting the collective wisdom of the bar groups... but now the Chicago Council of Lawyers is a group of "sleazy lawyers?" (For the record, in the 2016 retention election, Judge Lynch was rated qualified by the Chicago Bar Association---as was every other Cook County judge seeking retention in 2016---and Lynch was found qualified by all of the Alliance bar groups except the Council and the Illinois State Bar Association.)

Inconsistency is no bar to criticism in the Hellhole report.

And, of course, the Hellhole report mentions Rhonda Crawford as "the latest major embarrassment." But that was one race, in a weird, even unprecedented, set of circumstances. The legitimate criticisms that could be made about the civil justice system in Cook County and elsewhere are drowned in a sea of exaggeration.

But there are legitimate criticisms to be made of our civil justice system -- issues of cost and expense that have become so extreme that equal access to justice and even the fundamental fairness of the system itself is placed in jeopardy. I hope to offer my take on these issues in a series of future posts.

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