We continue to wait for the list of persons filing for the forthcoming class of associate judges in Cook County.
I will have the list here on FWIW just as soon as I can.
Meanwhile, though, somewhere between 250 and 300 of you (if history is any guide) already know that you'll be on that list when it comes out. Many of you have your bar ratings already.
But some of you do not. It is to you---the first time judicial applicants, the previously unrated applicants---that this post is addressed.
Judicial evaluations take time. The associate judge selection process cannot go forward until the evaluations are complete. When the list is published, judicial aspirants who do not have current evaluations from the CBA and the Alliance of Bar Associations of Judicial Screening will be contacted.
But why wait?
If you are among the many applicants for associate judge, and if you have not been previously evaluated, you should reach out as soon as possible to both the Alliance and the CBA and get your evaluations started.
To contact the Alliance, email Joyce Williams, the Alliance Administrator. To contact the CBA, email Therese Kurth.
Saturday, February 25, 2017
Friday, February 24, 2017
Reforming civil discovery – Part 4 – one more post on zero-based discovery
For Part 1 of this four-part series, click here.
With zero-based discovery, no discovery would be permitted to any party unless and until the court first reviews and approves the specific discovery sought.
This is similar to the way things worked in Lincoln’s day. A well-funded party would file its law action – and then file a separate chancery action, a bill of discovery, in order to obtain the discovery needed for their law case. We don’t need a separate suit to authorize discovery in the modern age, the distinction between courts of law and courts of equity having been abolished. But, if we are serious about reducing the cost of civil litigation and thereby securing access to the civil justice system for more than just the one-percenters, we do need a gatekeeper. A vigilant, skeptical gatekeeper.
Granted, while the existing discovery rules would not have to be totally rewritten to accommodate zero-based discovery, there would be some adjustments made by the bench and bar in order for the system to work.
So what?
Change is the only constant of modern life.
But, most of the time, ‘change’ means adding onto, not substituting one thing for another.
In my 37 years in practice, we’ve gone from IBM Selectrics to personal computers to laptops to tablets and smartphones.
We now have ‘phones’ which we use mostly to text or email people we might have, at one time, called.
On a phone.
I have been in practice so long that I can recall a time when the word ‘cloud’ referred principally to a visible mass of condensed water vapor in the sky.
In the course of my career, the rise of word processors and, later, PCs led directly to the ubiquitous use of form interrogatories. I refer not to the ‘form’ interrogatories now included in the comments to Supreme Court Rule 213 but, rather, to the form interrogatories that lawyers developed (or appropriated) for their own use – including, of course, the multi-page ‘definitions and instructions’ that some sadistic misanthrope inflicted on the rest of us a generation ago. We started using form discovery because it had become easy to do so. (Can you imagine someone having to retype those ‘definitions and instructions’ on a Selectric every time these were to be dropped on some unsuspecting opponent?)
In our modern, high-tech culture we often do things because we can, without giving a second thought to whether we should. The most widely cited example of this phenomenon has been the making of the second Star Wars trilogy, but this concept applies to civil discovery as well.
Photocopying made it possible to obtain large quantities of documents. So we started insisting on the production of large quantities of documents. Then digital technology made it possible to share enormous quantities of documents. So we began demanding these as well.
With zero-based discovery, we can step back and consider not just what we can do, but whether we should do it in the first place.
Lawyers will still be able to prepare cases, and settle cases, and try cases with zero-based discovery. But the best lawyer can’t do any of these things without clients. And potential clients can’t become clients unless they can afford representation.
We say we want ‘access to justice’ for civil litigants. In civil cases, meaningful access does not mean only that litigants can appear in court. Unrepresented parties can too easily ruin meritorious cases because they don’t understand either the applicable law or procedure. No matter how we streamline our court system, lawyers who regularly appear in a courtroom will have a decided advantage over pro se litigants who are involved in only one case. Access to justice for these litigants should involve access to lawyers, too. By drastically restraining discovery, perhaps many litigants will ‘discover’ that they can afford representation.
With zero-based discovery, no discovery would be permitted to any party unless and until the court first reviews and approves the specific discovery sought.
This is similar to the way things worked in Lincoln’s day. A well-funded party would file its law action – and then file a separate chancery action, a bill of discovery, in order to obtain the discovery needed for their law case. We don’t need a separate suit to authorize discovery in the modern age, the distinction between courts of law and courts of equity having been abolished. But, if we are serious about reducing the cost of civil litigation and thereby securing access to the civil justice system for more than just the one-percenters, we do need a gatekeeper. A vigilant, skeptical gatekeeper.
Granted, while the existing discovery rules would not have to be totally rewritten to accommodate zero-based discovery, there would be some adjustments made by the bench and bar in order for the system to work.
So what?
Change is the only constant of modern life.
But, most of the time, ‘change’ means adding onto, not substituting one thing for another.
In my 37 years in practice, we’ve gone from IBM Selectrics to personal computers to laptops to tablets and smartphones.
We now have ‘phones’ which we use mostly to text or email people we might have, at one time, called.
On a phone.
I have been in practice so long that I can recall a time when the word ‘cloud’ referred principally to a visible mass of condensed water vapor in the sky.
In the course of my career, the rise of word processors and, later, PCs led directly to the ubiquitous use of form interrogatories. I refer not to the ‘form’ interrogatories now included in the comments to Supreme Court Rule 213 but, rather, to the form interrogatories that lawyers developed (or appropriated) for their own use – including, of course, the multi-page ‘definitions and instructions’ that some sadistic misanthrope inflicted on the rest of us a generation ago. We started using form discovery because it had become easy to do so. (Can you imagine someone having to retype those ‘definitions and instructions’ on a Selectric every time these were to be dropped on some unsuspecting opponent?)
In our modern, high-tech culture we often do things because we can, without giving a second thought to whether we should. The most widely cited example of this phenomenon has been the making of the second Star Wars trilogy, but this concept applies to civil discovery as well.
Photocopying made it possible to obtain large quantities of documents. So we started insisting on the production of large quantities of documents. Then digital technology made it possible to share enormous quantities of documents. So we began demanding these as well.
With zero-based discovery, we can step back and consider not just what we can do, but whether we should do it in the first place.
Lawyers will still be able to prepare cases, and settle cases, and try cases with zero-based discovery. But the best lawyer can’t do any of these things without clients. And potential clients can’t become clients unless they can afford representation.
We say we want ‘access to justice’ for civil litigants. In civil cases, meaningful access does not mean only that litigants can appear in court. Unrepresented parties can too easily ruin meritorious cases because they don’t understand either the applicable law or procedure. No matter how we streamline our court system, lawyers who regularly appear in a courtroom will have a decided advantage over pro se litigants who are involved in only one case. Access to justice for these litigants should involve access to lawyers, too. By drastically restraining discovery, perhaps many litigants will ‘discover’ that they can afford representation.
Thursday, February 23, 2017
Reforming civil discovery – Part 3 – how zero-based discovery can work
In yesterday’s installment, I suggested that zero-based discovery would help ameliorate a basic access to justice problem, namely, that the cost of litigation has taken our civil court system beyond the reach of all but the biggest companies and the most wealthy individuals. But small businesses and middle class people still get sued and not every claim can be brought within liability insurance coverage. So we see increasing numbers of pro se litigants in our courts. Without the means to hire their own lawyers, too many pro se litigants, even those who might have meritorious claims or defenses, wind up losing to better-funded, represented opponents.
Eliminating ‘routine’ discovery will go a long way toward reducing the costs, and the pitfalls, for these pro se litigants. It may even bring the cost of representation back within the means of many litigants.
Having trouble visualizing a world without automatic discovery?
With zero-based discovery, the court would not merely inquire whether the parties have propounded interrogatories, the court would have to be persuaded that interrogatories are necessary to help this case be postured for settlement or trial and then have to approve the specific interrogatories to be propounded.
One immediate benefit would be the immediate disappearance of those six and seven page “definitions and instructions” sections that some attorneys like to lard onto interrogatories. No responsible court would ever approve a set of interrogatories with these. First of all, no one can possibly furnish answers to interrogatories that fully comply with these ‘instructions’: In the real world, the singular does not include the plural (or vice versa) and “and” never means “or” (usually couched, in the byzantine, prolix gibberish of the typical ‘instructions’ section, in terms of the conjunctive including the disjunctive... and vice versa).
Think about that for a minute. Under these kinds of impossible instructions, “two or three” might refer to an indeterminate, but small, number of something... or it might mean “five.” That’s simply absurd.
“Form” interrogatories would also vanish, unmourned, into the past. Let’s consider an example: In a garden variety rear-ender case, do we really need to know “the name and address of any physician, ophthalmologist, optician or other health care professional who performed any eye examination of” the defendant “within the last five years and the dates of each such examination?” Do we really need the defendant to disclose every doctor’s visit in the past 10 years and the reasons therefor? A court applying zero-based discovery should not ordinarily approve interrogatories like these in this sort of case despite their ‘approved’ pedigree.
With zero-based discovery, the attorneys for both side would have to persuade the trial court at the initial case management conference that they need certain interrogatories answered in order to either complete settlement evaluation or prepare the case for trial. A judge might agree that some of the old ‘form’ interrogatories might be useful in this regard – but probably not all of them in any particular case.
On the other hand, in a red-light, open intersection case, or where the defendant driver plows into a building, injuring persons within, interrogatories about the defendant’s prior health might be very important... and a court might be expected to permit these kinds of interrogatories. The important lesson is that discovery requests must be tailored to the issues in the case.
One other tremendous advantage of having direct judicial involvement in discovery from the outset of a case is that disputes about requests being too broad or too burdensome should be ‘nipped in the bud.’
In describing what zero-based discovery might look like, we started by talking about written discovery.
But there is no good reason to always wait for the conclusion of written discovery before taking depositions.
Consider an open intersection accident where each party is absolutely certain that the other ran the red light. If there were two eyewitnesses, why wait until after the plaintiff is forced to reveal that she had her tonsils out at age four? Why not start with the depositions of the two eyewitnesses? Both sides can reasonably reevaluate their settlement positions after just these two depositions are taken (the settlement value varying, of course, according to which party is identified by the eyewitnesses as being at fault). If the witnesses split, perhaps a trial is inevitable – but, then, future discovery can be framed with the necessity of trial in mind.
On the other hand, a trial court might conclude that depositions aren’t really necessary in a given case. Returning to the example of the garden-variety rear-ender case: To prepare such a case for trial, does the plaintiff’s attorney really need to know—in advance—whether the defendant claims to have hit the brakes five seconds or 10 seconds before impact? Conversely, does the defense really need to give a plaintiff the opportunity to rehearse his or her trial testimony?
Juries sometimes do strange things. When an anomalous result obtains, and the party or insurer starts looking through the pre-trial record, no attorney wants to be called upon to explain an order in which certain written discovery or depositions were ‘waived.’ Zero-based discovery will not eliminate runaway juries. But where the court has had ultimate authority about what discovery to permit and what to refuse from the very outset of the case, no one party can be blamed for ‘waiving’ anything.
Zero-based discovery will not mean zero-compliance discovery: Where a court permits certain interrogatories to be propounded, or certain documents to be requested, or certain depositions to be taken, the expectation will be that there will be “full disclosure.” But, when there is a dispute over the sufficiency of a response, the court will not have to guess what was expected; the court will have been party to the creation of the expectation.
Zero-based discovery would not mean an end to all discovery. Nor would it end Monday Morning Quarterbacking by disappointed clients or insurers. It would, however, bring an end to discovery being conducted without a valid reason or goal (and spending one’s opponent into submission would never qualify). With the parties having to justify any desired discovery and the court being involved in the process right from the start, and the natural antipathy of court and conscientious counsel toward discovery, the burdens—and costs—of discovery should be drastically reduced. Zero-based discovery is a concept that should find adherents from ITLA to the Judicial Hellhole folks. The IJA, however, may be a tougher sell....
--------------------------------------------------------------------------------
For the fourth and final part of this series, click here.
Eliminating ‘routine’ discovery will go a long way toward reducing the costs, and the pitfalls, for these pro se litigants. It may even bring the cost of representation back within the means of many litigants.
Having trouble visualizing a world without automatic discovery?
 |
| Routine discovery illustrated? |
One immediate benefit would be the immediate disappearance of those six and seven page “definitions and instructions” sections that some attorneys like to lard onto interrogatories. No responsible court would ever approve a set of interrogatories with these. First of all, no one can possibly furnish answers to interrogatories that fully comply with these ‘instructions’: In the real world, the singular does not include the plural (or vice versa) and “and” never means “or” (usually couched, in the byzantine, prolix gibberish of the typical ‘instructions’ section, in terms of the conjunctive including the disjunctive... and vice versa).
Think about that for a minute. Under these kinds of impossible instructions, “two or three” might refer to an indeterminate, but small, number of something... or it might mean “five.” That’s simply absurd.
“Form” interrogatories would also vanish, unmourned, into the past. Let’s consider an example: In a garden variety rear-ender case, do we really need to know “the name and address of any physician, ophthalmologist, optician or other health care professional who performed any eye examination of” the defendant “within the last five years and the dates of each such examination?” Do we really need the defendant to disclose every doctor’s visit in the past 10 years and the reasons therefor? A court applying zero-based discovery should not ordinarily approve interrogatories like these in this sort of case despite their ‘approved’ pedigree.
With zero-based discovery, the attorneys for both side would have to persuade the trial court at the initial case management conference that they need certain interrogatories answered in order to either complete settlement evaluation or prepare the case for trial. A judge might agree that some of the old ‘form’ interrogatories might be useful in this regard – but probably not all of them in any particular case.
On the other hand, in a red-light, open intersection case, or where the defendant driver plows into a building, injuring persons within, interrogatories about the defendant’s prior health might be very important... and a court might be expected to permit these kinds of interrogatories. The important lesson is that discovery requests must be tailored to the issues in the case.
One other tremendous advantage of having direct judicial involvement in discovery from the outset of a case is that disputes about requests being too broad or too burdensome should be ‘nipped in the bud.’
In describing what zero-based discovery might look like, we started by talking about written discovery.
But there is no good reason to always wait for the conclusion of written discovery before taking depositions.
Consider an open intersection accident where each party is absolutely certain that the other ran the red light. If there were two eyewitnesses, why wait until after the plaintiff is forced to reveal that she had her tonsils out at age four? Why not start with the depositions of the two eyewitnesses? Both sides can reasonably reevaluate their settlement positions after just these two depositions are taken (the settlement value varying, of course, according to which party is identified by the eyewitnesses as being at fault). If the witnesses split, perhaps a trial is inevitable – but, then, future discovery can be framed with the necessity of trial in mind.
On the other hand, a trial court might conclude that depositions aren’t really necessary in a given case. Returning to the example of the garden-variety rear-ender case: To prepare such a case for trial, does the plaintiff’s attorney really need to know—in advance—whether the defendant claims to have hit the brakes five seconds or 10 seconds before impact? Conversely, does the defense really need to give a plaintiff the opportunity to rehearse his or her trial testimony?
Juries sometimes do strange things. When an anomalous result obtains, and the party or insurer starts looking through the pre-trial record, no attorney wants to be called upon to explain an order in which certain written discovery or depositions were ‘waived.’ Zero-based discovery will not eliminate runaway juries. But where the court has had ultimate authority about what discovery to permit and what to refuse from the very outset of the case, no one party can be blamed for ‘waiving’ anything.
Zero-based discovery will not mean zero-compliance discovery: Where a court permits certain interrogatories to be propounded, or certain documents to be requested, or certain depositions to be taken, the expectation will be that there will be “full disclosure.” But, when there is a dispute over the sufficiency of a response, the court will not have to guess what was expected; the court will have been party to the creation of the expectation.
Zero-based discovery would not mean an end to all discovery. Nor would it end Monday Morning Quarterbacking by disappointed clients or insurers. It would, however, bring an end to discovery being conducted without a valid reason or goal (and spending one’s opponent into submission would never qualify). With the parties having to justify any desired discovery and the court being involved in the process right from the start, and the natural antipathy of court and conscientious counsel toward discovery, the burdens—and costs—of discovery should be drastically reduced. Zero-based discovery is a concept that should find adherents from ITLA to the Judicial Hellhole folks. The IJA, however, may be a tougher sell....
--------------------------------------------------------------------------------
For the fourth and final part of this series, click here.
Wednesday, February 22, 2017
Ammendola appointed to countywide McGinnis vacancy
The Illinois Supreme Court today appointed Loop attorney Marina E. Ammendola to the countywide vacancy created by the retirement of Judge Sheila McGinnis.
Ammendola's appointment is effective February 27 and will terminate on December 3, 2018. Ammendola has been licensed in Illinois since 1989. She is a member of the Board of Directors of the Illinois Trial Lawyers Association. Ammendola made the Chicago newspapers at the turn of the century when she represented Ald. Ed Burke and his wife, now-Supreme Court Justice Anne M. Burke, in the "Baby T" custody case. Before setting up her own practice in 2001, Ammendola worked for Patricia C. Bobb & Associates.
Ammendola's appointment is effective February 27 and will terminate on December 3, 2018. Ammendola has been licensed in Illinois since 1989. She is a member of the Board of Directors of the Illinois Trial Lawyers Association. Ammendola made the Chicago newspapers at the turn of the century when she represented Ald. Ed Burke and his wife, now-Supreme Court Justice Anne M. Burke, in the "Baby T" custody case. Before setting up her own practice in 2001, Ammendola worked for Patricia C. Bobb & Associates.
Reforming civil discovery – Part 2 – preserve the civil justice system by adopting zero-based discovery
For Part 1 of this series, click here.
There seems to be a misunderstanding among lawyers generally and courts in particular that, unless forced to do so, a lawyer in a civil case will never disclose a single scrap of information.
And yet we know that we don’t behave that way. Judges didn’t behave that way when they were in practice either (just ask one).
And we also know that most—the overwhelming majority of—civil cases are disposed of without trial.
And, finally, we also know that a great many cases are settled without suit ever being filed.
Cases settle without suit because lots of information is voluntarily disclosed. Plaintiffs’ attorneys carefully gather together their clients’ medical records and lost-time records and helpful scene photographs and bundle them together in a ‘package’ designed to make the adjuster requisition adequate authority. The damning documents are carefully arranged and an explanatory letter is sent in an effort to make the other party to the contract realize the consequence of his or her breach. It doesn’t take a 213(f)(3) disclosure schedule to get the property owner to share the engineering report that clearly shows that the concrete was improperly mixed and that this caused the damage to the structure. These disclosures are willingly made in order to resolve cases at the earliest possible opportunity.
In other words, we really are very eager to disclose information that helps us... it’s just information that might hurt our cause that we try to keep hidden. (Human nature again.)
But, in our hyper-connected, over-sharing age, a lot of stuff that clients might not want to reveal, if they thought about it, is already ‘out’ before their lawyers are brought ‘in.’
Even if some damaging stuff sometimes remains buried during pre-suit investigation, cases don’t typically arrive in court without both sides already knowing quite a bit, good and bad, about the controversy.
Why does it automatically make sense to recreate all the information obtained or exchanged pre-suit?
In a great many cases—especially in our hyper-connected, over-sharing world—a lot of information damaging to our opponent is already known by third parties. Military Strategy 101 teaches that a good flanking maneuver is less costly than a frontal assault on a fortified position. Why do lawyers spend so much time, and so much client money, making frontal assaults on their opponents, demanding that they reveal damaging stuff that could be far more easily obtained from others?
The concept of “complete” or “full” discovery may sound appealing to law school professors, but the costs attendant thereto has made our civil court system too expensive a forum for too many – and, yet, there’s no viable alternative available. (Arbitration? Don’t get me started: Discovery is corrupting arbitration practice, too, and where one side is purchasing the arbitrator, as is now the case in mega-company vs. consumer arbitration, just exactly how fair can that system be?)
What we should do instead is abandon the idea of automatic discovery and move to a zero-based discovery system. This is not as inconsistent with our existing rules as you might initially think. Consider, for example, Supreme Court Rule 218(a), which already provides that “the following shall be considered” at an initial case management conference:
With zero-based discovery the burden would be imposed on any party who wants it to persuade the court as to what discovery is necessary, and why. The court becomes the gatekeeper, tasked with evaluating whether the requested discovery is really necessary to get a case ready for trial – or positioned for settlement – or whether the discovery being sought is instead intended as a means to wear down or harass the other side. The court’s active involvement at this juncture should stop a ‘fishing expedition’ before it leaves port. The court’s control of the conduct of discovery from the outset would protect the uninsured or underfunded party against the use of discovery by a well-funded opponent as a means to bleed and bludgeon it into an unfair settlement or, worse, default or nonsuit.
With a zero-based discovery, human nature works with the system, instead of against it: When the judge becomes obliged to 'deal with' discovery issues, he or she, consistent with his or her understandable disdain for discovery issues, will want to minimize discovery, to focus it on just that which is essential.
The new assumption would be that, without a court-specified and court-monitored discovery schedule, carefully tailored to meet the specific needs of each case, a case would be ready for trial just as soon as issue was joined. This would not prevent the parties from attempting to resolve their differences, either with the court’s assistance in a pre-trial, or through mediation (again, as Rule 218(a) already provides). But, without unfettered, automatic discovery, the cost of litigation would be reduced, perhaps drastically, bringing the court system—and the services of lawyers—once again within the reach of middle class people and small businesses. That alone might curb the surge in pro se litigation.
Meanwhile, equally well-funded parties could still try and discover each other to death (if equally well-financed parties are determined to wage a discovery war of attrition, the wise trial judge will gladly let them). But the civil court system can still be preserved as a viable dispute resolution forum for the rest of us.
To be continued.
There seems to be a misunderstanding among lawyers generally and courts in particular that, unless forced to do so, a lawyer in a civil case will never disclose a single scrap of information.
And yet we know that we don’t behave that way. Judges didn’t behave that way when they were in practice either (just ask one).
And we also know that most—the overwhelming majority of—civil cases are disposed of without trial.
And, finally, we also know that a great many cases are settled without suit ever being filed.
Cases settle without suit because lots of information is voluntarily disclosed. Plaintiffs’ attorneys carefully gather together their clients’ medical records and lost-time records and helpful scene photographs and bundle them together in a ‘package’ designed to make the adjuster requisition adequate authority. The damning documents are carefully arranged and an explanatory letter is sent in an effort to make the other party to the contract realize the consequence of his or her breach. It doesn’t take a 213(f)(3) disclosure schedule to get the property owner to share the engineering report that clearly shows that the concrete was improperly mixed and that this caused the damage to the structure. These disclosures are willingly made in order to resolve cases at the earliest possible opportunity.
In other words, we really are very eager to disclose information that helps us... it’s just information that might hurt our cause that we try to keep hidden. (Human nature again.)
But, in our hyper-connected, over-sharing age, a lot of stuff that clients might not want to reveal, if they thought about it, is already ‘out’ before their lawyers are brought ‘in.’
Even if some damaging stuff sometimes remains buried during pre-suit investigation, cases don’t typically arrive in court without both sides already knowing quite a bit, good and bad, about the controversy.
Why does it automatically make sense to recreate all the information obtained or exchanged pre-suit?
In a great many cases—especially in our hyper-connected, over-sharing world—a lot of information damaging to our opponent is already known by third parties. Military Strategy 101 teaches that a good flanking maneuver is less costly than a frontal assault on a fortified position. Why do lawyers spend so much time, and so much client money, making frontal assaults on their opponents, demanding that they reveal damaging stuff that could be far more easily obtained from others?
The concept of “complete” or “full” discovery may sound appealing to law school professors, but the costs attendant thereto has made our civil court system too expensive a forum for too many – and, yet, there’s no viable alternative available. (Arbitration? Don’t get me started: Discovery is corrupting arbitration practice, too, and where one side is purchasing the arbitrator, as is now the case in mega-company vs. consumer arbitration, just exactly how fair can that system be?)
What we should do instead is abandon the idea of automatic discovery and move to a zero-based discovery system. This is not as inconsistent with our existing rules as you might initially think. Consider, for example, Supreme Court Rule 218(a), which already provides that “the following shall be considered” at an initial case management conference:
(1) the nature, issues, and complexity of the case;Rules 218(a)(4), (5), and (10) specifically invite a trial court’s early and direct involvement in discovery issues. But rather than asking whether ‘form’ interrogatories have been unthinkingly propounded, or whether the depositions of all parties have been scheduled, whether needed or not, I suggest that we ask courts to presume that no discovery whatsoever is necessary in any case. I call this ‘zero-based discovery.’
(2) the simplification of the issues;
(3) amendments to the pleadings;
(4) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(5) limitations on discovery including:
(i) the number and duration of depositions which may be taken;(6) the possibility of settlement and scheduling of a settlement conference;
(ii) the area of expertise and the number of expert witnesses who may be called; and
(iii) deadlines for the disclosure of witnesses and the completion of written discovery and depositions;
(7) the advisability of alternative dispute resolution;
(8) the date on which the case should be ready for trial;
(9) the advisability of holding subsequent case management conferences; and
(10) any other matters which may aid in the disposition of the action including but not limited to issues involving electronically stored information and preservation.”
With zero-based discovery the burden would be imposed on any party who wants it to persuade the court as to what discovery is necessary, and why. The court becomes the gatekeeper, tasked with evaluating whether the requested discovery is really necessary to get a case ready for trial – or positioned for settlement – or whether the discovery being sought is instead intended as a means to wear down or harass the other side. The court’s active involvement at this juncture should stop a ‘fishing expedition’ before it leaves port. The court’s control of the conduct of discovery from the outset would protect the uninsured or underfunded party against the use of discovery by a well-funded opponent as a means to bleed and bludgeon it into an unfair settlement or, worse, default or nonsuit.
With a zero-based discovery, human nature works with the system, instead of against it: When the judge becomes obliged to 'deal with' discovery issues, he or she, consistent with his or her understandable disdain for discovery issues, will want to minimize discovery, to focus it on just that which is essential.
The new assumption would be that, without a court-specified and court-monitored discovery schedule, carefully tailored to meet the specific needs of each case, a case would be ready for trial just as soon as issue was joined. This would not prevent the parties from attempting to resolve their differences, either with the court’s assistance in a pre-trial, or through mediation (again, as Rule 218(a) already provides). But, without unfettered, automatic discovery, the cost of litigation would be reduced, perhaps drastically, bringing the court system—and the services of lawyers—once again within the reach of middle class people and small businesses. That alone might curb the surge in pro se litigation.
Meanwhile, equally well-funded parties could still try and discover each other to death (if equally well-financed parties are determined to wage a discovery war of attrition, the wise trial judge will gladly let them). But the civil court system can still be preserved as a viable dispute resolution forum for the rest of us.
To be continued.
Tuesday, February 21, 2017
Reforming civil discovery – Part 1 – the problem of human nature
First in a series.
“Discovery is intended to be a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial.” Ostendorf v. International Harvester Co., 89 Ill.2d 273, 282, 433 N.E.2d 253, 257 (1982). “[D]iscovery is supposed to enable counsel to decide in advance of trial not only what the evidence is likely to be but what legal issues can credibly be argued.” Lubbers v. Norfolk & Western R. Co., 105 Ill.2d 201, 213, 473 N.E.2d 955, 961 (1984).
That’s what discovery in a civil case is intended to be.
Discovery is not supposed to be “a tactical game,” a game played to “impede and harass” an opponent. Williams v. A.E. Staley Mfg. Co., 83 Ill.2d 559, 566, 416 N.E.2d 252, 256 (1981).
But, too often, that’s just what discovery is: A game, a gauntlet, a trial by ordeal. It is too often used to prevent consideration of the merits of a case. It is deployed to wear down, subdue, bleed, and even bankrupt an opponent. Especially where the parties are not equally well-funded: Big business vs. small businessperson, for example, or well-insured or well-financed defendant vs. plaintiff (read: plaintiff’s attorney) with shallow pockets. Or where the defendant is uninsured.
How can this happen?
Two words: Human nature.
In the very next sentence after the Illinois Supreme Court warned, in Williams v. A.E. Staley Mfg. Co., that discovery should not be a tactical game, the court itself created the playing field: “Discovery is intended as, and should be, a cooperative undertaking by counsel and the parties, conducted largely without court intervention, for the purpose of ascertaining the merits of the case and thus promoting either a fair settlement or a fair trial.” (83 Ill.2d at 566, emphasis mine.)
With the lower courts instructed to refrain from routine intervention in discovery, whatever the Supreme Court’s intent, it was inevitable that abuses would flourish: Discovery bullies, like every other kind of bully, are all too willing to take every advantage when assured they can act without fear of ‘intervention.’
Not that trial courts needed much persuasion to refrain from intervention. Judges (understandably) don’t want to be burdened with discovery issues. It’s just human nature: Judges didn’t like discovery when they were mere practitioners.
Nor should this be surprising: No sane person likes discovery. Junior lawyers dream of becoming senior lawyers so they can fob discovery compliance off on the next cohort of fresh-faced associates, just as this unsavory task was dumped on them by their elders. That’s also human nature.
Senior partners may like the billable hours accumulated by their minions in the relentless pursuit (or avoidance) of discovery compliance, but none of them would willingly pitch in and review documents. That’s human nature, too.
Besides, no sane client would ever pay the senior partner’s hourly rate for tasks that the greenest associate might handle (or even a robot). Clients don’t just hate paying for discovery, they hate being bothered by it. What lawyer hasn’t had a client whine why am I paying you if I have to look for all this stuff myself? (With clients whose defense costs are being fronted by liability insurers the whining is sometimes even worse: Why do I have to do all this stuff? What did I buy insurance for anyway?)
So it’s just human nature that clients, and all the lawyers who can, will avoid discovery whenever they can (and, sometimes, even when they shouldn’t). Equally in accord with human nature, the courts are entirely willing to adopt an attitude of benign neglect (you lawyers should work this out amongst yourselves).
This creates opportunities for the Eddie and Edwina Haskells of the world. (I always hesitate to use cultural references from my TV-saturated childhood but, in rummaging around the Intertubes preparing this piece, I came across a 2011 article on the Psychology Today website, by Dr. Ronald E. Riggio, entitled, “Bullies and the Eddie Haskell Effect,” and subtitled, “Why workplace bullies often don’t get caught.” So I guess the reference is still well enough understood.) Mrs. Cleaver usually saw through Eddie’s smarmy and unctuous horse manure, but not always right away. Sometimes Wallace and Theodore, er, Wally and the Beaver, would wind up in hot water first. Comedy ensued.
Like June Cleaver, judges may eventually see through the Eddie or Edwina Haskells who are abusing discovery (and their opponents) in the cases before them – but not always before costs are inflated out of proportion with the value of the case.
Litigation is about persuasion. Persuasion involves more than the lawyer’s careful case citations or passionate speeches. A jury trial, you may have heard, is a proceeding in which 12 strangers decide which party has the best lawyer. There’s a kernel of truth in that old piece of corn: First and foremost, persuasion involves the lawyer trying to show the court that she is the reasonable one, that he is trustworthy, that they are credible. The lawyer who loses credibility with the court may find that all the great case citations and flowery language in the world can’t save the client’s cause. Once again, that’s human nature.
Anyone who has ever played a team sport, or had a kid in a team sport, has learned (often the hard way) that the umpire or referee doesn’t always see (or recognize) the provocation that gives rise to the retaliation. But the retaliation is almost always seen, and penalized. That’s human nature, too.
A court may not immediately recognize that the motion to compel is unfair or unjust because the underlying discovery requests are irrelevant, overbroad, overly burdensome, and/or grossly disproportionate to the dispute in question. In fact, this would be unlikely because, after all, the parties are supposed to work this stuff out without judicial intervention. Therefore—human nature being what it is—the party seeking the court’s assistance in enforcing discovery, in apparent compliance with the rules, particularly Rule 201(k), especially when represented by an Edward Haskell, Esq., will, at least at first, command the court’s sympathy. And the aggrieved respondent, whose credibility with the court is diminished just by being on the receiving end of such a motion, can squander what credibility he or she has left with too shrill or outraged a response. This, too, is human nature.
A proper civil discovery system should not work against human nature (or, at best, in spite of human nature).
More on this tomorrow.
“Discovery is intended to be a mechanism for the ascertainment of truth, for the purpose of promoting either a fair settlement or a fair trial.” Ostendorf v. International Harvester Co., 89 Ill.2d 273, 282, 433 N.E.2d 253, 257 (1982). “[D]iscovery is supposed to enable counsel to decide in advance of trial not only what the evidence is likely to be but what legal issues can credibly be argued.” Lubbers v. Norfolk & Western R. Co., 105 Ill.2d 201, 213, 473 N.E.2d 955, 961 (1984).
That’s what discovery in a civil case is intended to be.
Discovery is not supposed to be “a tactical game,” a game played to “impede and harass” an opponent. Williams v. A.E. Staley Mfg. Co., 83 Ill.2d 559, 566, 416 N.E.2d 252, 256 (1981).
But, too often, that’s just what discovery is: A game, a gauntlet, a trial by ordeal. It is too often used to prevent consideration of the merits of a case. It is deployed to wear down, subdue, bleed, and even bankrupt an opponent. Especially where the parties are not equally well-funded: Big business vs. small businessperson, for example, or well-insured or well-financed defendant vs. plaintiff (read: plaintiff’s attorney) with shallow pockets. Or where the defendant is uninsured.
How can this happen?
Two words: Human nature.
In the very next sentence after the Illinois Supreme Court warned, in Williams v. A.E. Staley Mfg. Co., that discovery should not be a tactical game, the court itself created the playing field: “Discovery is intended as, and should be, a cooperative undertaking by counsel and the parties, conducted largely without court intervention, for the purpose of ascertaining the merits of the case and thus promoting either a fair settlement or a fair trial.” (83 Ill.2d at 566, emphasis mine.)
With the lower courts instructed to refrain from routine intervention in discovery, whatever the Supreme Court’s intent, it was inevitable that abuses would flourish: Discovery bullies, like every other kind of bully, are all too willing to take every advantage when assured they can act without fear of ‘intervention.’
Not that trial courts needed much persuasion to refrain from intervention. Judges (understandably) don’t want to be burdened with discovery issues. It’s just human nature: Judges didn’t like discovery when they were mere practitioners.
Nor should this be surprising: No sane person likes discovery. Junior lawyers dream of becoming senior lawyers so they can fob discovery compliance off on the next cohort of fresh-faced associates, just as this unsavory task was dumped on them by their elders. That’s also human nature.
Senior partners may like the billable hours accumulated by their minions in the relentless pursuit (or avoidance) of discovery compliance, but none of them would willingly pitch in and review documents. That’s human nature, too.
Besides, no sane client would ever pay the senior partner’s hourly rate for tasks that the greenest associate might handle (or even a robot). Clients don’t just hate paying for discovery, they hate being bothered by it. What lawyer hasn’t had a client whine why am I paying you if I have to look for all this stuff myself? (With clients whose defense costs are being fronted by liability insurers the whining is sometimes even worse: Why do I have to do all this stuff? What did I buy insurance for anyway?)
So it’s just human nature that clients, and all the lawyers who can, will avoid discovery whenever they can (and, sometimes, even when they shouldn’t). Equally in accord with human nature, the courts are entirely willing to adopt an attitude of benign neglect (you lawyers should work this out amongst yourselves).
Like June Cleaver, judges may eventually see through the Eddie or Edwina Haskells who are abusing discovery (and their opponents) in the cases before them – but not always before costs are inflated out of proportion with the value of the case.
Litigation is about persuasion. Persuasion involves more than the lawyer’s careful case citations or passionate speeches. A jury trial, you may have heard, is a proceeding in which 12 strangers decide which party has the best lawyer. There’s a kernel of truth in that old piece of corn: First and foremost, persuasion involves the lawyer trying to show the court that she is the reasonable one, that he is trustworthy, that they are credible. The lawyer who loses credibility with the court may find that all the great case citations and flowery language in the world can’t save the client’s cause. Once again, that’s human nature.
Anyone who has ever played a team sport, or had a kid in a team sport, has learned (often the hard way) that the umpire or referee doesn’t always see (or recognize) the provocation that gives rise to the retaliation. But the retaliation is almost always seen, and penalized. That’s human nature, too.
A court may not immediately recognize that the motion to compel is unfair or unjust because the underlying discovery requests are irrelevant, overbroad, overly burdensome, and/or grossly disproportionate to the dispute in question. In fact, this would be unlikely because, after all, the parties are supposed to work this stuff out without judicial intervention. Therefore—human nature being what it is—the party seeking the court’s assistance in enforcing discovery, in apparent compliance with the rules, particularly Rule 201(k), especially when represented by an Edward Haskell, Esq., will, at least at first, command the court’s sympathy. And the aggrieved respondent, whose credibility with the court is diminished just by being on the receiving end of such a motion, can squander what credibility he or she has left with too shrill or outraged a response. This, too, is human nature.
A proper civil discovery system should not work against human nature (or, at best, in spite of human nature).
More on this tomorrow.
Sunday, February 05, 2017
Rule 23 in the news this week -- and an illustration of the 'be careful what you ask for' rule
It had to be coincidence, right?
Justice Michael Hyman's partial concurrence and dissent in Snow & Ice, Inc. v. MPR Management, Inc., 2017 IL App (1st) 151706-U, was front page news in Wednesday evening's Law Bulletin. In my email Wednesday afternoon was an update from the Appellate Lawyers Association. Both concerned suggested changes to Illinois Supreme Court Rule 23.
The ALA chose Wednesday to report that the Supreme Court had "voted during its November 2016 Term to make no changes to" Rule 23 at this time.
The ALA, Chicago Bar Association, and the Illinois State Bar Association had written a joint letter back in 2014 to then-Chief Justice Rita B. Garman proposing that Rule 23 orders be citable as persuasive authority. (Currently, Rule 23(e)(1) provides that Rule 23 orders are "not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.")
The Supreme Court chose not to act on the 2014 request but, according to the ALA, "invited the Associations to undertake a comprehensive review and 'consider whether there is continued value to distinguishing between published and nonpublished dispositions since they are all available electronically and no longer bound in paper form.'"
Joined by representatives of the Executive Committee of the Illinois Judges Association, the ALA, CBA and ISBA set up a Special Committee on Rule 23 and, this past August, "submitted a revised proposed amendment to Rule 23 that would permit the citation of Rule 23 orders issued after the amendment would take effect as persuasive authority." But the Court again said no.
Currently, the majority of a panel deciding a case determines whether a case will be disposed of by a published opinion or under Rule 23. In Snow & Ice, Inc., Justice Hyman advocates for what he calls "the one justice rule": "in cases with a dissent or special concurrence, the preference of a single justice, rather than a majority of the panel, [should be] sufficient to publish the decision as an opinion" 2017 IL App (1st) 151706-U, ¶28.
Hyman notes, 2017 IL App (1st) 151706-U, ¶¶51-52, that the First, Fifth, Sixth and Ninth Circuits of the U.S. Courts of Appeal have a publication rule in place similar to the one he suggests, as do state courts in Alabama, Arizona, California, Indiana, Missouri, North Dakota, and Texas.
Illinois used to be on this list, too. My research over the past couple of days leads me to believe that the 'panel majority' rule came into effect in 1994. I am virtually certain that, in 1991, the filing of a dissent automatically made what had been a Rule 23 order into a published opinion.
I choose not to name the case here, but let me explain the facts.
Plaintiff discharged her lawyer at some point after filing suit. I don't know why. New counsel was engaged and ready to take the case over, but the first attorney was unwilling to relinquish the file until there was an agreement reached on a division of fees and costs.
This is a bad idea of many levels, not least of which is the fact that the fee can not be properly allocated at such an early stage: The first attorney is entitled to a quantum meruit recovery but, until the case was resolved, no one could fairly say how much or how little the first attorney contributed to the eventual result. The second attorney should have tendered the first attorney's costs and promised to protect the first attorney's lien rights and the first attorney should have handed over the file.
I don't know whether the failure to respond to defendant's initial written discovery requests prompted the dismissal of the first attorney or whether the first attorney refused to answer the discovery because he'd been discharged. I do know, however, that the discovery went unanswered for roughly six months. A sanctions motion was eventually filed. About five months after the motion was filed (11 months after the discovery was served), Attorney #1 withdrew and Attorney #2 entered an appearance. About a month after that the sanctions motion was granted. In the published opinion, the Appellate Court said the sanctions motion was granted ex parte, but the motion had been pending, at that point, for roughly six months and presumably both attorneys, the one who withdrew while the motion was pending, and the one who appeared while the motion was pending, knew or should have known about the pending hearing date. In this case, therefore, I believe ex parte merely means that no one showed up to oppose the entry of the dismissal.
Three more months dragged by before Attorney #2 decided to do something about the dismissal.
A §2-1401 petition was filed, with supporting affidavits. Section 2-1401, then and now, requires that a §2-1401 "petition must be supported by affidavit or other appropriate showing as to matters not of record." The affidavits are necessary to establish a party's due diligence; a §2-1401 can not be granted unless the movant can show due diligence and a meritorious claim (or defense).
In this case, though, the affidavits were defective. They were stricken. An amended §2-1401 petition was then filed, supported by different affidavits. The published opinion does not so state but, as I recall, the second set of affidavits were not only deficient technically, they contradicted the first set of affidavits factually, setting up the always-awkward question of were you lying then or are you lying now?
The trial court agreed, and struck the affidavits once again -- stating expressly that the attorneys were negligent and not diligent -- but, this time, the trial court granted the petition.
I don't remember with certainty when I got involved in the case. It wasn't mine from the beginning. I know I was involved in the appeal. I may have gotten involved at the §2-1401 stage, but my memory, over 25 years later, is fuzzy. I do remember roping in a new associate to work on the appeal with me. After all, I told her, this case presented a typical bar exam question and she was much closer to the bar exam than I was. (When I took the bar, §2-1401 was called §72, but it was basically the same statute, and the affidavit and due diligence requirements were unchanged.)
You probably saw where this was going long since: The Appellate Court affirmed, in what was initially a Rule 23 order, on the basis of "fairness." Both the trial court and the Appellate Court were reluctant to punish the plaintiff because her attorneys could not "cooperate."
There was no associate assisting me on the petition for rehearing. I was almost certainly a tad intemperate. I'm sure I brought up the standard-bar-exam-question angle.
My screed caught the attention of one of the panelists---but only one---and she filed a dissent agreeing that it was error to grant a §2-1401 petition without supporting affidavits and where due diligence was not established. The filing of that dissent, under Rule 23 as it existed in 1991, caused the order, which would otherwise have never been heard from again, to automatically become an opinion. My temper tantrum caused an unfortunate result to become a knot in the otherwise smooth fabric of §2-1401 precedent. I got snarky thank-you notes from more than one plaintiff's attorney when that case hit the advance sheets. I remember one note said, You lowered my malpractice premiums with this case. Thanks!
Be careful what you ask for indeed.
At some point the nice insurance company that was paying our fees decided it would be best to move on. I don't know if this was before or after the PLA (which was denied) but it was certainly before the Motion for Leave to File Instanter a Motion for Reconsideration of the Denial of the Petition for Leave to Appeal that I filed anyway, missing a good part of our Christmas party that year, eating my time instead of whatever meal the others were having.
(And, of course, this motion, too, was denied -- although, ironically, several years later, also at Christmastime, I drew on my experience in drafting that awkwardly named motion to draft another such motion in another case which was actually granted.)
I'm no fan of Rule 23. I used to say, with some bitterness, that all my appellate victories were buried in Rule 23 orders -- and all my losses were in published opinions. But (a) this is not true and (b) with the passage of time, I've come to realize that it's the result that counts, not whether a disposition is published. And, besides, there have been a few occasions, over the years, when I was glad for the cloak of Rule 23. Anybody who's done this kind of work can recount instances of making good arguments in not-so-good cases.
But the problem with Rule 23 probably lies in its application, not so much in the concept. Despite the experience recounted above, I'm inclined to agree with Justice Hyman's suggested "one justice rule" for publication. And there was one other point that Justice Hyman made about a circumstance where Rule 23 should not apply (2017 IL App (1st) 151706-U, ¶38), namely, "reaffirming a rule of law's viability despite its age."
Justice Hyman illustrated this principle by positing an opinion written in 1977 that plainly states a rule of law. The rule hasn't changed in 40 years and, therefore, according to Rule 23, a new case expressing that rule need not be published. "But," suggests Justice Hyman, "a 2017 opinion restating that rule, and analyzing a modern factual scenario, can be helpful to today’s lawyers in understanding the rule’s continued applicability. (And reassure lawyers that they have found the most recent, accurate statement of the law.)" (2017 IL App (1st) 151706-U, ¶38.) To this, I would add that a reaffirmation of long-standing principles now and again would also provide comfort to trial judges increasingly skittish about relying on non-public domain authority....
Justice Michael Hyman's partial concurrence and dissent in Snow & Ice, Inc. v. MPR Management, Inc., 2017 IL App (1st) 151706-U, was front page news in Wednesday evening's Law Bulletin. In my email Wednesday afternoon was an update from the Appellate Lawyers Association. Both concerned suggested changes to Illinois Supreme Court Rule 23.
The ALA chose Wednesday to report that the Supreme Court had "voted during its November 2016 Term to make no changes to" Rule 23 at this time.
The ALA, Chicago Bar Association, and the Illinois State Bar Association had written a joint letter back in 2014 to then-Chief Justice Rita B. Garman proposing that Rule 23 orders be citable as persuasive authority. (Currently, Rule 23(e)(1) provides that Rule 23 orders are "not precedential and may not be cited by any party except to support contentions of double jeopardy, res judicata, collateral estoppel or law of the case.")
The Supreme Court chose not to act on the 2014 request but, according to the ALA, "invited the Associations to undertake a comprehensive review and 'consider whether there is continued value to distinguishing between published and nonpublished dispositions since they are all available electronically and no longer bound in paper form.'"
Joined by representatives of the Executive Committee of the Illinois Judges Association, the ALA, CBA and ISBA set up a Special Committee on Rule 23 and, this past August, "submitted a revised proposed amendment to Rule 23 that would permit the citation of Rule 23 orders issued after the amendment would take effect as persuasive authority." But the Court again said no.
Currently, the majority of a panel deciding a case determines whether a case will be disposed of by a published opinion or under Rule 23. In Snow & Ice, Inc., Justice Hyman advocates for what he calls "the one justice rule": "in cases with a dissent or special concurrence, the preference of a single justice, rather than a majority of the panel, [should be] sufficient to publish the decision as an opinion" 2017 IL App (1st) 151706-U, ¶28.
Hyman notes, 2017 IL App (1st) 151706-U, ¶¶51-52, that the First, Fifth, Sixth and Ninth Circuits of the U.S. Courts of Appeal have a publication rule in place similar to the one he suggests, as do state courts in Alabama, Arizona, California, Indiana, Missouri, North Dakota, and Texas.
Illinois used to be on this list, too. My research over the past couple of days leads me to believe that the 'panel majority' rule came into effect in 1994. I am virtually certain that, in 1991, the filing of a dissent automatically made what had been a Rule 23 order into a published opinion.
I choose not to name the case here, but let me explain the facts.
Plaintiff discharged her lawyer at some point after filing suit. I don't know why. New counsel was engaged and ready to take the case over, but the first attorney was unwilling to relinquish the file until there was an agreement reached on a division of fees and costs.
This is a bad idea of many levels, not least of which is the fact that the fee can not be properly allocated at such an early stage: The first attorney is entitled to a quantum meruit recovery but, until the case was resolved, no one could fairly say how much or how little the first attorney contributed to the eventual result. The second attorney should have tendered the first attorney's costs and promised to protect the first attorney's lien rights and the first attorney should have handed over the file.
I don't know whether the failure to respond to defendant's initial written discovery requests prompted the dismissal of the first attorney or whether the first attorney refused to answer the discovery because he'd been discharged. I do know, however, that the discovery went unanswered for roughly six months. A sanctions motion was eventually filed. About five months after the motion was filed (11 months after the discovery was served), Attorney #1 withdrew and Attorney #2 entered an appearance. About a month after that the sanctions motion was granted. In the published opinion, the Appellate Court said the sanctions motion was granted ex parte, but the motion had been pending, at that point, for roughly six months and presumably both attorneys, the one who withdrew while the motion was pending, and the one who appeared while the motion was pending, knew or should have known about the pending hearing date. In this case, therefore, I believe ex parte merely means that no one showed up to oppose the entry of the dismissal.
Three more months dragged by before Attorney #2 decided to do something about the dismissal.
A §2-1401 petition was filed, with supporting affidavits. Section 2-1401, then and now, requires that a §2-1401 "petition must be supported by affidavit or other appropriate showing as to matters not of record." The affidavits are necessary to establish a party's due diligence; a §2-1401 can not be granted unless the movant can show due diligence and a meritorious claim (or defense).
In this case, though, the affidavits were defective. They were stricken. An amended §2-1401 petition was then filed, supported by different affidavits. The published opinion does not so state but, as I recall, the second set of affidavits were not only deficient technically, they contradicted the first set of affidavits factually, setting up the always-awkward question of were you lying then or are you lying now?
The trial court agreed, and struck the affidavits once again -- stating expressly that the attorneys were negligent and not diligent -- but, this time, the trial court granted the petition.
I don't remember with certainty when I got involved in the case. It wasn't mine from the beginning. I know I was involved in the appeal. I may have gotten involved at the §2-1401 stage, but my memory, over 25 years later, is fuzzy. I do remember roping in a new associate to work on the appeal with me. After all, I told her, this case presented a typical bar exam question and she was much closer to the bar exam than I was. (When I took the bar, §2-1401 was called §72, but it was basically the same statute, and the affidavit and due diligence requirements were unchanged.)
You probably saw where this was going long since: The Appellate Court affirmed, in what was initially a Rule 23 order, on the basis of "fairness." Both the trial court and the Appellate Court were reluctant to punish the plaintiff because her attorneys could not "cooperate."
There was no associate assisting me on the petition for rehearing. I was almost certainly a tad intemperate. I'm sure I brought up the standard-bar-exam-question angle.
My screed caught the attention of one of the panelists---but only one---and she filed a dissent agreeing that it was error to grant a §2-1401 petition without supporting affidavits and where due diligence was not established. The filing of that dissent, under Rule 23 as it existed in 1991, caused the order, which would otherwise have never been heard from again, to automatically become an opinion. My temper tantrum caused an unfortunate result to become a knot in the otherwise smooth fabric of §2-1401 precedent. I got snarky thank-you notes from more than one plaintiff's attorney when that case hit the advance sheets. I remember one note said, You lowered my malpractice premiums with this case. Thanks!
Be careful what you ask for indeed.
At some point the nice insurance company that was paying our fees decided it would be best to move on. I don't know if this was before or after the PLA (which was denied) but it was certainly before the Motion for Leave to File Instanter a Motion for Reconsideration of the Denial of the Petition for Leave to Appeal that I filed anyway, missing a good part of our Christmas party that year, eating my time instead of whatever meal the others were having.
(And, of course, this motion, too, was denied -- although, ironically, several years later, also at Christmastime, I drew on my experience in drafting that awkwardly named motion to draft another such motion in another case which was actually granted.)
I'm no fan of Rule 23. I used to say, with some bitterness, that all my appellate victories were buried in Rule 23 orders -- and all my losses were in published opinions. But (a) this is not true and (b) with the passage of time, I've come to realize that it's the result that counts, not whether a disposition is published. And, besides, there have been a few occasions, over the years, when I was glad for the cloak of Rule 23. Anybody who's done this kind of work can recount instances of making good arguments in not-so-good cases.
But the problem with Rule 23 probably lies in its application, not so much in the concept. Despite the experience recounted above, I'm inclined to agree with Justice Hyman's suggested "one justice rule" for publication. And there was one other point that Justice Hyman made about a circumstance where Rule 23 should not apply (2017 IL App (1st) 151706-U, ¶38), namely, "reaffirming a rule of law's viability despite its age."
Justice Hyman illustrated this principle by positing an opinion written in 1977 that plainly states a rule of law. The rule hasn't changed in 40 years and, therefore, according to Rule 23, a new case expressing that rule need not be published. "But," suggests Justice Hyman, "a 2017 opinion restating that rule, and analyzing a modern factual scenario, can be helpful to today’s lawyers in understanding the rule’s continued applicability. (And reassure lawyers that they have found the most recent, accurate statement of the law.)" (2017 IL App (1st) 151706-U, ¶38.) To this, I would add that a reaffirmation of long-standing principles now and again would also provide comfort to trial judges increasingly skittish about relying on non-public domain authority....