Friday, December 08, 2017

Cook County once again named a "judicial hellhole" -- but why?

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.


Anonymous said...

wonderful, well thought out, well reasoned piece. thank you

Anonymous said...

Mr. Leyhane, Your commentary on the 2017-2018 ATRF Judicial Hellholes report is well reasoned and insightful in all regards. To state that Cook County Judges are consistently biased showing disregard for truth and fairness is simply not only inaccurate, but reckless and defamatory. Furthermore, the Cook County Judiciary is not plagued by unqualified and unethical judges. Again, a reckless and defamatory statement.

From the day she took the bench, my colleague, Judge O’Brien, has been fair, professional, and sympathetic in the discharge of her duties. Her knowledge of the law far exceeded her judicial assignment to small-claims court. Her patience with Pro-se litigants was almost limitless. Her dedication to the impartial administration of justice guided her every decision. I fully agree that conduct that she may or may not have engaged in prior to taking the bench has little relevance in support of the ATRF’s condemnation of the Cook County Judiciary as a whole. Judge O’Brien is an excellent judge.

Furthermore, every single factual allegation made by the ATRF regarding my former colleague, Judge Cooke, is inaccurate. He was not forced to step down by the Chief Judge’s Executive Committee; did not spend $660,000 campaigning; did not contribute $70,000 to the campaigns of other judges; and did not request a desirable civil assignment. I know for a fact that Judge Cooke conscientiously objected to any criminal assignment due to his belief that it created unresolvable conflicts of interest due to his financial positions. I also know for a fact that Judge Cooke’s supervisors were not pleased with the course of action he pursued in the resolution of those conflicts. Hardly a situation or example of unethical judicial behavior.

Judge O’Brian and Judge Cooke would likely find the case of Judge Robert Thomas v. The Kane County Chronicle an extremely interesting read. I would also urge younger FWIW readers to look it up. Although public figures, Judges, may under certain circumstances maintain a sustainable cause of action for defamation. How ironic would it be if the ATRF Judicial Hellholes report itself was actually the cause of additional litigation? Any defamation attorneys have an opinion?

Anonymous said...

Cooke paid Arroyo 5G every month. And Cooke gave candidate Ed Underhill $30G. To run in a different 6th sub vacancy? Possibly. All his expenditures are on the ISBE filings. He threw some money around. Plus.... Had residency issues. Not exactly the poster child for ethics.

Judge O'Brien is presumed innocent.

Anonymous said...

You would think that "presumed innocent" would not result in banishment to 13th Floor Administrative Duties. Why remove Judge O'Brien from the bench when no crime has been proven? Seems to me removing her from the bench gives organizations the subject matter they need to further their biased objective. Even if found guilty of a crime, it would not be for anything she did as a judge or while being a judge. Cooke was free to spend his money campaigning any way he likes as long as it is disclosed. As Mr. Leyhane noted it was all his own money. The ATRF is way off base characterizing the entire Cook County Judiciary as unfair, unethical, and unqualified and using O'Brien and Cooke as examples. I also believe that both O'Brian and Cooke were found "qualified" or "recommended" by every bar association. That is no small feat.

Anonymous said...

@ Anon Dec. 9 6:19:00 PM - this is a conversation worth having but let's put it in the context of today. Instead of focusing on the three year old campaign of a politically connected and financially privileged lawyer/businessman who deliberately and brazenly employed a tactic to scare off all challengers, why don't you call out this year's candidates? Yes, Cooke donated thousands to Arroyo for "consulting". But so what? He (Cooke) had a long history of being a heavy Democratic donor which continues to this day. How about all of the candidates that are donating thousands of dollars to "political consultants" who claim to have "influence" over the democratic committeeman and their decision making at slating? Is that not highly unethical? Yet it goes on unimpeded. Lets talk about all of the candidates who rent (not own like Cooke) hole in the wall apartments or empty homes blocks away from their families to qualify for subcircuit elections. Some of these candidates have even been rewarded for their "ethics" with Supreme Court appointment to the Bench. I agree with you that Cooke could be a poster child for something but enough with the hypocrisy. How judges (as a whole) get slated and elected in Cook County is anything but ethical. The ATRF should write about that.

Anonymous said...

So would it be o/k to give Arroyo 5G a month if he was not a Puerto Rican intercity State Rep. but rather an old white lady with claimed ties to the southwestern townships that have huge waited votes at slating? Arroyo ran the successful campaigns of Ald. Gilbert Villages, Ald. Milly Santiago, and that of Cook County Commissioner Louis Arroyo, Jr. Nice track record. Not really the track record of someone who represents just about everyone at one time or another then purges the flock and claims only the winners, is it? Brilliant and ultimately a successful call by Cooke. Imitation is the best form of flattery and there are a number of candidates this go around who have taken a page out of the Cooke playbook.

Anonymous said...

A few words on Judge O'Brian and Judge Cooke based upon my own observations that others considering pursuing the bench may find useful.

If there is any conduct in your past, as an attorney or otherwise, that may come back a haunt you, think long and hard about running for judge. Not that you would not be a fine judge, as I believe Judge O'Brian to be, but that judges are juicy targets. Your past and current actions are of great interest to the public. The public takes delight in harshly judging those who judge. Being a sitting judge is not for those who may have skeletons in their closet. Running for judge should be avoided by those who have any questionable behavior in their past.

Judge Cooke is a different situation. In my opinion he should have never pursued the bench. Not that he did not have the right or qualifications to do so. The great majority of judges are defined by their jobs, meaning they become judges 24-7. It encompasses who they are on and off the bench. Cooke, on the other hand, only looked at being a judge as a job. Nothing more. He did not want it to define him in the least. One of the clerks that worked with Cooke told me that he was extremely uncomfortable with being called "judge" or "your honor" and insisted that those around him address him as "Richard" when the public was not present. He just did not like it. Very unusual as new judges take satisfaction in the titles and often take offense when not recognized as judges. He also did not grasp that if he needed help working around his conflicts it was expected he behave (as new judges do) in an over-sweetened and meek demeanor. Many P.D.'s and ASA's and AG's make easy transitions to the bench. However, attorneys like Cooke, coming from private practice who are accustomed to long lunches and not being told what to do or where to go would undoubtably find life on the bench both restrictive and miserable.

I am sure that never in their imaginations did Judge O'Brien or Judge Cooke think that someday they would be singled out in an ATRF report on Judicial Hellholes. I am particularly saddened for Judge O'Brien as she is actively trying to defend herself and remain on the bench. Her reputation as a Judge did not need to be further tarnished. The lessons to be learned from these two very different situations is that serious thought and self-examination must put into pursuing the bench. It is not a game and should not be taken lightly.

Anonymous said...

If by "residency issues" you are referring that he did not meet the residency requirements to run in the subcircuit; I disagree. Someone in that hotly contested subcircuit would have at least filed a challenge. No one did. If by "residency issues" you are referring to the location of the building he owns being located across from the Zocalo People Plaza in the center of the recently approved Logan Square Bicentennial Improvements Project; than yeah, I agree with you. Maybe you can get elected as a judge and save about 10 years of salary and buy his building and have "residency issues" too. Poster child for smart real estate investing. Just another reason for you to hate.

Anonymous said...

With respect to O"Brien and Cooke. O'Brien was indicted on fraud charges by the Feds. That's a big deal. She is looking at jail time.
Cooke's non compliance with a judicial assignment can not even be spun into something even remotely serious.

Anonymous said...

Surprisingly, no one has made this comment. It is inside baseball but really no secret. Some of the P.J.'s have not been quiet. The ATRF might have found the truth more interesting. Ever wonder why Cooke was brought before the Chief Judge Evans' Executive Committee with less than 24 hour notice for "alleged misconduct" that supposedly had been occurring for months? Here is the answer: The Executive Committee had been scheduled to sit to hear the O'Brien matter. But O'Brien was well liked by all. A rising star who, it was thought was going to run for the Appellate Court in the not too distant future. In addition to her husband being a newly elected judge, other members of the O'Brien family worked for the Chief Judge.

What better way to take a little of the heat and media attention off of a very well liked judge and divert it to a new judge, that, well, let's just say was also very well liked except by his bosses. A plan was hatched.

Johnny Carson famously said about having a lot of money "all that means is that I don't have to do what I don't want to do". Little did the 6th subcircuit know at the time but they elected Johnny Carson. So, with Johnny Carson refusing to set foot in traffic court and building a reputation of saying things out loud that other judges secretly wished they could say but would never dare, something was going to happen.

Heeeeere's Johnny! So, Judge Johnny Carson, and his hired gun, a well-respected retired Appellate Court Justice, walked into the Executive Committee hearing and stated that Johnny Carson was never going to divest himself of the businesses that continued to do business with the City, County, and State. So there. The Chief Judge made it clear Johnny Carson was never getting what he wanted, namely a civil assignment. Get back to Marriage Court, Johnny. But Johnny being Johnny and having Johnny money would have none of it and backed the Chief Judge and the Executive Committee into a corner. "Either recognize and respect my conflicts and work around them or I'm out of here". "No need to vote me to the AOIC, here are my keys to the judges' elevator, which I never use; the keys to the judges' bathroom, which I find dirty and disgusting; and my black robe, which I did not know would be so hot and clingy". Johnny and his hired gun departed, but on his way out Johnny stopped and warmly shock the Chief Judge's hand. Sometimes reasonable men and women differ. It happens. The Chief Judge and Johnny were both cut from the same political cloth, and Johnny knew and respect that. Hell, Johnny really liked the man. Antagonists by day, nothing more.

But the Executive Committee did not accept Johnny's offer to quietly part as friends. They voted Johnny to the AOIC anyway. Why, you ask? Don't forget about the plan that was hatched. They never expected Johnny to offer to turn in his black robe. It was shocking. It had never been done before. But then Judges do not have Johnny money. There are more vulgar terms for Johnny money but you know what I am talking about.

Everybody wins. As expected, the Press covered the Cooke story far more than the O'Brien story. Think about that. A Cook County Judge get indicted for fraud by the Feds but it gets lost to the guy who walks away from an easy job that pays 200K a year. The plan worked like a charm. Cooke took a lot of heat off O'Brian. But don't feel bad for Johnny because he has Johnny money. Johnny money allows complete ownership of yourself and your time, the new American Dream, and the essence of success. So there you have it. I hope all FWIW readers enjoyed. Merry Christmas.