Chief Justice Burke: Remote court proceedings are here to stay

A few years back---before COVID-19---I had an insurance defense matter pending in McHenry County. My client was insured with an out-of-state carrier that wrote only statutory limits policies in Illinois. The carrier, being relatively new to this market, did not have any arrangements with counsel in Woodstock, but it had me, and I had a car.

When I schlepped out there for an initial status conference, I discovered that the judge handling this case had made arrangements with a company called CourtCall to permit litigants and their counsel to participate in status hearings by telephone. For a per-hearing fee, roughly comparable to the mileage charge the insurer was willing to pay, I could attend the next status hearing by phone -- and charge the insurer for only 10% of the fee that I had charged for that first hearing. I had to sign up in advance, and there was at least one subsequent hearing marred by a technical glitch, but, on balance, I felt pleased that I found a genuine savings for the carrier -- of critical import in matters with so little at stake.

Good for the insurer---if bad for me---but, then, I was never a good businessman.

No good deed goes unpunished. Later, when the carrier assigned me to a case in another outlying county (Kane, I think) that didn't have a judge who had subscribed to CourtCall, my "windshield time" aggravated the carrier more than ever because my trips to Geneva were now seen as "unnecessary." CourtCall, though a national company, was, like my insurer-client, new to the Illinois market, and not yet well-established. It was a good concept, whose time had not yet come.

Then came the Pandemic... and everything changed. Lawyers got used to Zooming in and out of hearings from their home offices, sometimes a/k/a kitchens or bedrooms. In May 2020, the Illinois Supreme Court promulgated new Rules 45 and 241. Litigants and counsel were not only permitted to attend status hearings, by phone or video, under Rule 241, litigants were also expressly permitted "to testify or otherwise participate in a civil trial or evidentiary hearing by video conferencing from a remote location." Where video links were unavailable for trial testimony, phone testimony might be permitted.

The Pandemic is officially over now, except in places where it isn't, both in the U.S. and abroad, where people won't (or can't) get vaccinated -- but never mind that now: Most of the nation, including Illinois, is making a forced march toward the New Normal.

That New Normal will include more remote hearings than were ever imagined, much less permitted, in the Old Normal. That is the directive contained in a June 14, 2021 letter from Illinois Supreme Court Chief Justice Anne M. Burke to all Illinois trial and reviewing court judges. Here's a copy of the letter:

"While the effects of the pandemic are beginning to recede," the letter reads, "remote court proceedings will not." In Chief Justice Burke's view, "courts, lawyers, and litigants have [all] significantly benefitted from remote court proceedings, and the option to appear remotely will continue as a key component in keeping our court system open and accessible."

Supreme Court Rules 45 and 241 are "permanent and enduring features of our justice system," the letter continues. "Remote court proceedings are a critical part of meeting the current and changing needs of our society, and the Supreme Court continues to encourage and support remote court appearances."

This is not just an access to justice issue, according to Chief Justice Burke. "Lawyers across the state have embraced remote court proceedings as it has allowed them to appear in multiple courts, representing multiple clients, without extensive travel." Costs are reduced where "the client pays for 20 minutes, not 3 hours or more."

This, in turn, makes legal representation more affordable -- and affordable access to lawyers is itself an access to justice issue, whether the courts want to say so or not.

Anything that reduces the costs of litigation will be a benefit to lawyers. When litigation costs are reduced more otherwise 'self-represented litigants' can become clients. Remote hearings should help.

And, as long as the Supreme Court is on a roll, could it next take up the issue of zero-based discovery? Please?

Illinois Bar Foundation announces matching gift opportunity

The Illinois Bar Foundation is raising money to help lawyers in need---something it has done since it was founded in 1951---but the need today may be greater than ever, as COVID-19 has rocked the legal profession, in many cases denying, or at least drastically reducing, the opportunity for some lawyers to earn a living.

The Year of Never-Ending Pandemic, now finally seeming to subside, has had, in the IBF's words, a "catastrophic effect... on our colleagues, particularly those working as solo practitioners or in small practices."

Some of us---most of us, hopefully---who have been impacted by COVID closures will, eventually, claw our way back to profitability. But some of us will need a helping hand along the way. Dollars donated to the IBF's COVID-19 Lawyers Care Relief Fund during the month of May will be matched by the American Academy of Matrimonial Lawyers as indicated in the graphic above. And, yes, that is a link, in the preceding sentence, to an IBF donation page.

And here's another link: this one brings up the COVID-19 Lawyers Care Relif Fund page of the IBF website, from which lawyers who need a hand can apply for assistance.

The IBF says that it has noticed that the "vast majority of our recipients work with lower-income clients, providing much-needed legal services to an underserved population and creating a ripple effect of aid to the community at large. Providing support to our colleagues in need and making legal aid accessible to everyone, particularly those of limited means, is at the very core of what we do."

Online forms are great. How-to websites and call centers are very nice, too. But for now and for the foreseeable future, access to justice in this State means access to lawyers. Big firm pro bono efforts and law school clinics are well-intentioned, but none of these, or all of these put together, cannot possibly reach all of our fellow citizens who need timely, practical legal advice. If you have weathered the COVID storm safely, consider helping out those less fortunate. And they will help others in turn.

Illinois Supreme Court launches Illinois Court Help

The Illinois Supreme Court today announced the Illinois Court Help site.

And, yes, although the site appears to be aimed at the increasing numbers of pro se litigants, if you read through the announcement, it is apparently understood that lawyers may also have occasion to call or visit the site.

Here is the Court's announcement, in its entirety:

Illinois Court Help was launched today in order to connect people to the resources and information they need to go to court in Illinois. It is the first personalized court information service offered by the Illinois Courts and one of the latest innovations created during the COVID-19 pandemic to make the courts and information more accessible.

People can call or text 833-411-1121 to connect with a trained court guide who can provide up-to-date Illinois court information and answers to specific questions about the court process. Illinois Court Help guides will also connect people to the resources they need to go to court, from filing forms to accessing legal aid. Initial hours of operation are 10:00 a.m. – 2:00 p.m. Monday through Friday, with expanded hours to come over the next few months.

“Illinois Court Help really is a gamechanger for people who, due to economic hardship, must represent themselves in court and have had access to in-person assistance restricted due to the COVID-19 pandemic,” Illinois Supreme Court Justice Anne M. Burke said. “This easy-to-use service closes the information gap and helps people go to court with more confidence.”

COVID-19 has made going to court for in-person information and assistance a challenge due to social distancing restrictions. This comes at a time when more lower income residents are facing eviction and other legal issues and cannot afford a lawyer to help them navigate the court system.

Nationally, an estimated three out of every five people in all civil legal cases go to court without a lawyer, according to the Self-Represented Litigants Network. Here in Illinois, half of all family law cases and 56% of domestic violence cases had at least one person representing themselves in 2020. At the same time, less than a quarter of Illinois courts have dedicated self-help staff to assist people representing themselves.

Illinois Court Help guides will provide step-by-step instructions on how to file court documents and explain how to appear in court on Zoom. Users will also be able to access one set of easy-to-read forms that can be used in any Illinois court. Lawyers who practice in multiple Illinois counties can find courthouse information. The new service will not provide legal advice but allows for guides to connect people to legal aid and other community services.

This service builds on other innovative changes instituted in response to COVID-19 to improve people’s access to the court system.

“Just as people now attend court hearings through Zoom, Illinois Court Help allows people to find the court information they need no matter where they are,” said Justice Mary K. Rochford, Chair of the Illinois Supreme Court Access to Justice Commission. “By guiding people through the court process through an emphasis on customer service, Illinois Court Help has the added benefit of reducing court delays and helping our courts operate more smoothly and efficiently.”

More information on Illinois Court Help can be found by going to www.ilcourthelp.gov.

Livestream today at 3:00 p.m. -- "Improving the Bench: Importance of Judical Quality and Diversity in Cook County"

Updated October 19, 2020 to note that this presentation was recorded and can be watched online at your convenience.

Today's program is the second of three planned forums planned by the Collaboration for Justice, a partnership of the Chicago Council of Lawyers and Chicago Appleseed.

Organizers have provided this description of the reasons and purposes of today's event:

A high-quality judiciary - the foundation of equitable and effective courts - relies on public oversight of the performance of sitting judges. In Cook County, some judges are elected by the public on a countywide or precinct (“Subcircuit”) basis; others - Associate Judges - are peer-elected by a majority of sitting judges after an application process. Associate Judges submit applications to the Illinois Supreme Court at the end of their four-year term in order to be retained, whereas Circuit and Subcircuit judges must campaign for reelection every six years (for all three types of judges, nearly all who run for retention are retained).

In 2013, a Chicago Appleseed analysis of the 397 sitting judges in Cook County suggested that the Associate judge process was leading to a higher-quality, more diverse judiciary than did the public election process, but more recent findings show no real difference in the racial composition of judges - regardless of whether they are appointed or elected. In order to make informed ballot decisions, the public must have access to transparent and objective reports of individuals judges’ histories, behaviors, and practices. Join us as we discuss the importance of voting for judges and speak with legal experts, journalists, and civic organizers about strategies to improve and diversify - in more than just a representative way - the Cook County bench.

Just a little clarification here: Associate judges do not ordinarily have four year terms when initially chosen. Per Illinois Supreme Court Rule 39(a)(1), the terms of all associate judges across the state expire "on June 30th of every fourth year subsequent to 1975 [presently June 30, 2023], regardless of the date on which any judge is appointed." Associate judges seeking to remain in office do not apply to the Supreme Court; rather, they must submit, per Rule 39(c)(1), "a request for reappointment with the chief judge of the circuit at least three months but not more than six months before the expiration of his or her term." The chief judge certifies the names of the candidates seeking retention to the Director of the Administrative Office of the Illinois Courts, and the Director prepares and distributes a retention ballot to each circuit judge in that circuit (Rule 39(c)(2)). An associate judge must secure "yes" votes from three-fifths of the circuit judges voting in order to be reappointed (Rule 39(c)(3)).

Also, the distinction between subcircuit and circuit judges evaporates at retention time: All face the entire county electorate.

In any event, Mari Cohen, an Assistant Editor of Jewish Currents and an author for South Side Weekly, will be the moderator for today's program.

Panelists will include Stevie Valles and Jen Dean, the Executive Director and Co-Deputy Director, respectively, of Chicago Votes; former Judge Travis Richardson; Rick Tulsky, a Co-Founder of Injustice Watch; and Malcolm Rich and Elizabeth Monkus, the Executive Director and Development and Access to Justice Program Coordinator for Chicago Appleseed. (Rich is also the Executive Director of the Chicago Council of Lawyers.)

Here's the link for the program.

Justice P. Scott Neville, Jr. joins the Illinois Supreme Court

Justice Anne M. Burke administering the oath of office

Before a packed Thompson Center auditorium audience that included many of his colleagues from the Illinois Appellate Court, Justice P. Scott Neville, Jr. was sworn in yesterday afternoon as the 117th justice of the Illinois Supreme Court.

The only empty seats were in the middle of the room;
many stood in the side aisles to see the ceremony

Justice Neville's sister, Professor Florise Neville-Ewell of the Western Michigan University Cooley Law School, introduced Appellate Court Justice Shelvin Louise Marie Hall, who served as Mistress of Ceremonies.

A dozen speakers offered congratulations to and reminiscences about Justice Neville: State Sen. Kwame Raoul (13th); State Rep. Barbara Flynn Currie (25th); Cook County Board President Toni Preckwinkle; Justice Terrence Lavin, Vice Chair of the Executive Committee of the Illinois Appellate Court, First District; Chief Judge Timothy C. Evans of the Cook County Circuit Court; Judge Andrea Buford, Chairperson of the Illinois Judicial Council; Judge James E. Snyder, President of the Illinois Judges Association; Judge Ramon Ocasio, President of the Latino Judges Association; Allen Nettles, a law school classmate of Justice Neville at Washington University; Dr. Conrad Worrill, the retired Director of the Center for Inner City Studies at Northeastern Illinois University and a Neville family friend; Josephine Wade, the owner of Captain's Hard Times Restaurant on E. 79th Street; and Dartesia A. Pitts, the President of the Cook County Bar Association.

Some of the speakers at yesterday's ceremony.  Front row, from left to right, Justice Shelvin Louise Marie Hall, Dartesia Pitts, Judge Buford, Rep. Barbara Flynn Currie, Chief Judge Timothy C. Evans, Judge Ramon Ocasio, and Justice Terrence Lavin.  Back row, left to right: Dr. Conrad Worrill (obscured), Allen Nettles, Judge James E.Snyder (obscured), and Pastor David B. Thornton

Pastor David B. Thornton, of the Sixth Grace Presbyterian Church, offered the invocation and benediction and Felicia Coleman-Evans, accompanied by Elsa Harris, provided music.

Outgoing Justice Charles E. Freeman was lauded by virtually every speaker, as were the late Appellate Court Justices Glenn T. Johnson and R. Eugene Pincham.

In his remarks, Justice Neville praised Justices Johnson (for whom he clerked) and Pincham as the mentors of his legal career and Justice Freeman as the mentor of his judicial career.

In his service on the Supreme Court, Justice Neville said repeatedly, no one will be unseen, no one will be unheard ("whether pro se or no say," he added at one point, to applause).

Neville did not announce that he will appoint a committee to screen judicial candidates, but he pledged to work with the Alliance of Bar Associations for Judicial Screening (the United Nations of bar associations, he said) to vet his appointments. I have "complete confidence" in the Alliance, Neville said, "because I co-founded" that group.

Justice Neville proposed that every court should be a "court of record" -- that court reporters, or at least tape recorders, be present in every courtroom so that there is a record in every case and no case is ever "bounced" in a court of review for lack of a record. Justice Neville suggested that this could be financed by law firm donations, though he did not specify how this might be done.

Personal opinion, clearly labeled as such: This is a great proposal. Personally, I'd prefer live court reporters in every courtroom for every hearing and trial. While I've been impressed with the quality of transcripts I've seen transcribed from tapes in DuPage County, I think a live court reporter in the room would provide the best, and most accurate, record. But the cost would presumably be substantial -- and the funding of such a laudable venture would be problematic.

Justice Neville also proposed that the State should organize a trial bar, like that utilized by the United States District Court for the Northern District of Illinois.

Fully half the litigants in Cook County, Neville said, are unrepresented. They may be effectively denied access to justice on account of their inability to navigate the tricky shoals of the justice system. Lawyers from the proposed 'trial bar' could be appointed to assist these litigants, Neville suggested.

Personal opinion clearly labeled as such: This is a terrible idea. While the pro se problem is real and a true access to justice issue, the solution is not to impose yet another unfunded mandate on the bar.

The problem is an economic one: Litigation costs too much.

Note that I did not say lawyers cost too much. There are a privileged few -- a very few -- who command $1,000 or more per hour for their services. But there are a great many lawyers struggling to pay the rent, who charge far, far less -- and who can't collect the fees they do charge.

The truth is that, for too many litigants, the cost of obtaining, and paying for, a lawyer is the only litigation cost that can be "controlled." Even though judges recognize the folly of this -- like cutting off one's nose to spite one's face -- litigants too often forego the services of a lawyer (or, as litigation costs mount, stop paying their lawyer).

By reducing the cost of litigation, we will reduce the numbers of pro se litigants -- and increase employment opportunities for lawyers. (See my 2017 article, Solving the Pro Se Revolution, and putting lawyers back to work, too.) And how do we reduce litigation costs? We move from "routine" (and prohibitively expensive) discovery to a system of zero-based discovery.

Of course, serving as a fair but skeptical gatekeeper in discovery matters will take effort on the part of the judiciary, but the courts have always had the power to control discovery. And better this than to respond to one economic injustice by imposing another.

I suppose it is unwise for a mere solo practitioner to stake out a policy disagreement with a newly-installed Supreme Court justice on Day One of his tenure. But, then, I never was much of a politician.

And this is too important.

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.

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.

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?

Routine discovery illustrated?

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.

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:

(1) the nature, issues, and complexity of the case;

(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;

(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;

(6) the possibility of settlement and scheduling of a settlement conference;

(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.”

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.’

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.

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.

The civil justice system must be especially sensitive to the plight of the uninsured litigant

A typical tort case turns on insurance. The defendant's attorneys are paid by an insurance company; the settlement or verdict will be funded by an insurer. In multiple-party cases, the allocation of fault may take a back seat, for settlement purposes, to the allocation of available insurance proceeds. To some extent, insurance drives the civil justice system.

But not every defendant in the civil justice system is insured. Not every claim is covered. While it might be possible to plead most tort claims into coverage, there is no way to find even potential liability coverage for many contract claims. Now and again a vengeful plaintiff will deliberately plead only intentional acts in an effort to prevent liability coverage from attaching.

I don't pretend to know what the percentage is of uninsured defendants in the civil justice system at any time. I'm sure it fluctuates. And also varies according to the type of case. But the class of uninsureds includes both individuals and small businesses.

Judges tend to see those uninsured defendants who are also not represented. Who appear pro se. We read, from time to time, about the explosive growth in pro se litigants in Cook County and elsewhere, often in the context of judges or bar associations urging lawyers to be more generous with their time and representing some of these litigants pro bono, that being a Latin phrase meaning 'on the cuff.'

The growth in pro se litigants is fueled, in no small part, by the fact that the perceived and/or actual cost of legal services is so high that legal representation is beyond the means of most uninsured litigants. Only wealthy individuals and prosperous small businesses can afford lawyers, or think they can.

Judges see pro se litigants very clearly. They may not see, or notice, the uninsured litigant who begins with counsel and unrealistic expectations about how quickly their case can be resolved. Time passes, money is spent, but the case continues. The relationship sours. The court's first real notice of this type of uninsured litigant may not come until the unpaid lawyer is reduced to withdrawing (what we call, in the old Gaelic, a motion in gelt). Has the lawyer overcharged... or overpromised... or underperformed? Maybe. In some cases. Maybe the client's unrealistic notions of how fast his or her attorney can move a case without the active cooperation the court and opposing counsel is to blame. Maybe the client just flat runs out of money.

The point is that the civil justice system, properly functioning, should be on the lookout for uninsured litigants from the earliest stages of the case. Some provision must be made to expedite their cases so that they can have the benefit of representation and not (necessarily) have to wind up staring into the abyss of bankruptcy. When the motion in gelt is presented, it's too late for the court to do much good. This is a basic access to justice issue: Can real people hope to achieve a fair, appropriate resolution of their cases in our civil justice system when they are sued and do not have insurance?

In coming posts I will share some ideas I have on this topic.

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

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

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

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

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

More specifically, ATRF points out (p. 29), "Cook County hosts roughly two-thirds of Illinois’ major civil litigation, even though only about 40% of the state’s population lives there." The embedded link takes Hellhole readers to a Illinois Civil Justice League report from April 2015 titled "Litigation Imbalance III" and subtitled "Revealing Trends in Court Dockets Demonstrate Lawsuit Abuse in Select Counties." I perused it to find out what the American Tort Reform Association (and Foundation) mean by "major civil litigation." Near as I can tell, major civil litigation is another way of saying Law Division cases.

In other words, not just tort cases, but commercial cases, contract cases and collection cases, too. There is no commodity litigation outside County Cook; Downstate farmers who try and hedge their risks in futures trading are required to litigate their disputes in Chicago. All sorts of disputes arising from national and international trade can be heard in Chicago; these are not likely to be properly venued in courts Downstate.

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

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

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

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

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

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

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

Inconsistency is no bar to criticism in the Hellhole report.

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

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

Reality intrudes -- a programming note

Two years ago, with the Cook County Democratic Party's slating meeting at the Hotel Allegro, steps from my office, and steps from the Daley Center, I was able to sit in and observe as much as of the judicial slating process as any outsider could. I had one matter to cover in the course of the two-day session, and I was able to run to court and run back without missing much of anything.

This year, however,the slating meeting, which began yesterday, is at the Erie Cafe, on the west end of the River North area. Neither my office nor the Daley Center has moved, and I have too much on my desk to permit me the luxury of attending.

It would be one thing if there were useful, productive legal work on my desk. After all, the practice of law is my day job -- this blogging enterprise may be fun for me and informative for my readers, but blogging won't pay my bills.

But the truth is, the red-hot, five-alarm emergencies on my desk are mostly discovery matters.

The discovery matters on my desk break down into two categories -- (1) needless and pointless form discovery and (2) discovery deployed as a "tactical game," notwithstanding the Supreme Court's admonition against that sort of thing in Williams v. A.E. Staley Mfg. Co., 83 Ill.2d 559, 416 N.E.2d 252, 256 (1981).

Of course, since 1981, the Supreme Court has gone into the business of prescribing form discovery....

There was one time, back in the early 1980s, when I personally saw something in discovery that dramatically impacted the outcome of a case: I was the junior associate in my firm, tasked with slogging through the medical records subpoenaed in a personal injury case, when I came across a nurse's note recounting how hospital security had to be dispatched to fetch back the supposedly-seriously-injured patient-now-plaintiff who'd slipped away from his bed... and into a nearby tavern.

I haven't seen anything half as good since. And I've seen far too many discovery requests and responses and piles and piles of subpoenaed records.

As a solo practitioner, I'm still looking. I have to: I have no junior associates or paralegals on whom to dump the thankless task of completing form discovery responses. So, while I'm very grateful for the uptick in paying legal work, my current caseload (in my experience, the mix changes over time) includes a lot of litigation matters, all in the discovery phase. Because I have to do the discovery myself I see first-hand the effect that "discovery" of things already known and/or really unimportant to the disposition of a case has on the cost of litigation. Discovery deployed as a tactical weapon is even more costly -- and injurious to our stated professional goals of civility and access to justice.

But these are issues to take up when the workload permits.

Meanwhile, I've had some rumors from inside the slating meeting about who will be on the list when the list is announced -- but no one, as yet, has volunteered to go 'on the record.'

When I have some results to report, I will do so.

But, for now, however, reality intrudes, and I have discovery issues to which I must attend.

Cicruit Court Clerk Dorothy Brown's annual Expungement Summit set for this Saturday in Forest Park

Cook County Clerk of the Circuit Court Dorothy Brown will host an Expungement Summit on Saturday, June 7, from 8:30 a.m. to 6:00 p.m. at the Living Word Christian Center, 7600 W. Roosevelt Road, in Forest Park. Clerk Brown explains the many services that will be offered at this 10th annual Summit in this current North Town News Magazine interview.

Volunteer attorneys will be on hand to assist persons in completing their petitions to expunge or seal their records, or to assist persons in determining their eligibility for this relief (if you'd like a head start on the process, or wish to determine your eligibility in advance, Clerk Brown's website offers this procedural guide). The Cook County Public Defender, the Cook County State's Attorney, and the Office of the State Appellate Defender are among the public agencies who will have representatives on site. The Illinois Prisoner Review Board will also have representatives present to assist people who may not qualify for expungement but who wish to learn about Certificates of Good Conduct and Relief from Disabilities or to pursue executive clemency or pardon. In the NTNM video, Clerk Brown even mentions that some judges may be present, volunteering their time to rule immediately on in forma pauperis petitions that persons seeking expungement may wish to file in lieu of paying the otherwise-required fees for their petitions.

This is a very nice event, a blessing for the persons who may benefit from these services, and a blessing also for those who volunteer their time to assist. It's a good thing, and I don't mean to say a thing against it.

But.

If I have a house with a leaky roof and broken windows, the first improvement I would make is not planting flowers and decorative shrubs.

The Clerk of the Circuit Court's office is like a house with a leaky roof and broken windows.

Pull any file at the Daley Center -- if the file can be found in the first place, that is -- and examine the contents. I'm willing to bet that in any random sample of 10 files, you'd find five or six with misfiled papers; you might see misfiled documents in all 10. And don't even think about finding any recently filed documents, much less any recently-entered orders, in those files.

I do some civil appellate work. I can't tell you how often I have found the Clerk-prepared Records on Appeal to be incomplete, sometimes with documents vital to the appeal missing altogether. Yes, the Clerk's office has some very hard-working, helpful people that help attorneys like me work around these deficiencies and I am always grateful for that assistance. But I have needed it far too often.

The Clerk's Office maintains an electronic docket in civil cases which provides a rough -- often very rough -- approximation about what is going on in any given case. I also do some insurance defense work. Many times, in a case with multiple defendants, an insured may not be served until the case has been underway for some time. When I am then called in, I can't advise the insurer about the case status just by looking at the electronic docket, and all too often, especially in the smaller cases, I can't get the court file, or it's incomplete. (Court personnel apparently have access to better data than mere lawyers and the general public. I recall one incident within the past year where I told the learned judge presiding that there was no indication in the court file that my would-be client had ever been served. The judge, however, referring to the screen in front of him, said there was proof of service and, when I marveled at this, he asked, "Are you calling me a liar?" Yikes! I hastily explained that I was surprised because I knew there was nothing like this in the court file; I'd looked myself.)

Judging from conversations I've had with other attorneys, I know I'm not alone in my concerns about how things work, or not, in the Clerk's office. Ask around.

Until recently, the Clerk's Office used to allow papers in civil cases to be filed at either the Daley Center or any of the five outlying Municipal District Courthouses. Now, however, in order to file an appearance in a Markham case (6th Municipal District), one must drive to Markham. This makes no sense. The county did not suddenly splinter into six county-lets. Of course, this latest step backwards in customer service was meant as a not-so-gentle nudge for attorneys to use e-filing instead. As I reported here in February, Clerk Brown has urged the Illinois Supreme Court to make e-filing mandatory in Cook County by 2016. But the e-filing system offered by Clerk Brown's office is an expensive boondoggle, charging "convenience fees" even for filing allegedly no-fee documents and adding surcharges to filing fees even when the fee is paid by electronic withdrawal from an attorney's checking account. It is a system vastly inferior to the PACER system used by the federal courts.

Nor are the problems in the Circuit Clerk's office -- the broken windows and leaky roof -- confined to the keeping of records in civil cases. Last month I bragged about FWIW winning a Meritorious Achievement Award in the Online category at this year's Chicago Bar Association Kogan Awards luncheon. But the winners of the Kogan Awards in the Online category were Robert Herguth, Patrick McCraney, Dane Placko and Patrick Rehkamp for the BGA series "Disorder in the Bureaucracy of the Courts," concerning lost and missing papers necessary for criminal appeals. (Other entries in the BGA series also concerned the operation of Clerk Brown's office and are here and here.)

Last October, Cook County Sheriff Tom Dart blamed antiquated record-keeping by the Clerk of the Circuit Court Clerk's office for the the premature release of a number of prisoners. (In the October 13, 2013 editions of the Tribune, Mitch Smith reported that Clerk Brown responded in a statement that "repeated efforts to create an interdepartment electronic records system for the criminal court have been 'continually met with resistance or disinterest.'")

It seems to me, then, that the Expungement Summit is like a decorative shrub in front of a dilapidated house: It can be admired on its own merits -- and I hope Saturday's summit proves to be a great success -- but it doesn't patch the roof or fix the broken windows on the house.

Commentary: Just say NO to mandatory efiling in Cook County -- unless....

Today's Law Bulletin carries the chilling story of Cook County Circuit Court Clerk Dorothy E. Brown's request to the Illinois Supreme Court to mandate efiling in Cook County by 2016 (subscription required).

Marc Karlinsky's Law Bulletin article quotes CBA President J. Timothy Eaton as saying a committee on e-filing is meeting with the CBA Board of Managers on Thursday and will likely recommend that the association support mandatory e-filing:

“Those of us who practice in the federal system, we like it,” Eaton said. “It’s efficient, it’s quicker and I hope that’s where the state system heads.

Mr. Eaton is right when he says efiling in the District Court here is efficient and quick. If the Circuit Court of Cook County was really intent on emulating the federal system, efiling in the Circuit Court would be a great idea.

But, as things stand now, efiling in the Circuit Court of Cook County is a terrible idea and this proposal must be turned aside.

PACER is great.

But the Clerk of the Circuit Court does not have PACER.

It has instead a fee-generating monster.

With PACER a lawyer can see and download any document filed in his or her case for free, at least the first time around. The lawyer can look at any pleading in any federal court for no more than ten cents a page. Nothing in the proposed mandatory Cook County efiling scheme gives lawyers or the public access to true copies of filed documents at any price. The Clerk's current electronic docket system is better than nothing -- especially since no files ever seem to be available at the counter for inspection these days -- but it sure isn't PACER.

There are fees associated with case filings, with PACER or over the counter. It is understandable that, where filing fees would ordinarily be permitted, any efiling system might require some additional charge for credit card use: Though most of us never think about it, merchants pay for the privilege of accepting credit card payments. MasterCard or Visa or Discover or American Express pays the merchant almost as soon as the card is swiped. The merchant pays a premium, however, for the risk of default assumed by the card issuer -- a discount on the customer's price of up to 6%, if I recall correctly, depending on the card issuer and the merchant's negotiating leverage. Whether credit card issuers could be induced (or required) to waive that premium in the case of government entities accepting credit card payments -- at the risk of jeopardizing some miniscule portion of their obscene profits -- is a matter of policy I leave to others. (Clerks of Illinois Circuit Courts are free to negotiate fees with credit card issuers in cases of credit card payments tendered for payment of fines or court costs by persons convicted of an offense. See, 705 ILCS 105/27.3b.)

But, even if an additional fee is considered politically acceptable for credit card usage, why would direct draws from the efiler's bank account be charged similarly? If I bring an Appearance or a new Complaint to the Clerk's office to file, there is no charge, over and above the statutorily-authorized filing fee, for taking my office check. If my office account has insufficient funds to cover the check, I will be subject to the wildly imaginative fees and penalties imposed by my bank. (That's a strong incentive never to bounce a check. And if the bounced check came from my client fund account, I would in addition draw the unwanted attention of the ARDC.) As a practical matter, in most cases, the bank will pay the check and chase its customer for the deficiency. The Clerk is paid. If the bank does not also cover the check, the Clerk would dun the would-be filer for the fee, and rightly so. See, 705 ILCS 105/27.2a(gg) (imposing escalating penalties for delinquent fees); see also, 705 ILCS 105/27.2b (allowing interception of State income tax refunds to satisfy delinquent fees). Either way, the Clerk is paid. And, if the Clerk is not paid, the would-be filer may find him or herself in serious trouble with the court.

But, as things stand now, the Clerk of the Circuit Court charges a standard 3.59% fee for credit card or checking account usage alike:

Electronic Payment Fee

A fee of 3.59% of the amount of the transaction is added to each eFiling transaction (credit card, debit card, or ACH) to administer and report the electronic payment. The minimum Electronic Payment Fee per transaction is $1.00.

The amount is automatically added and displayed prior to financial commitment by the filer. The amount will also display on the eFile receipt.

Electronic Payment Fees are non-refundable once the electronic filing transaction has been submitted, and will not be refunded in the event of rejection by the Clerk.

But increased filing fees are only the tip of the iceberg.

There appear to be no "free filings" in the current Cook County efiling scheme.

There is, rather, a $2.95 convenience fee imposed on each efiling transaction -- even (apparently) the ones on which the efiler has already paid a 3.59% fee over and above the permitted statutory fee:

Convenience Fee

There is a $2.95 convenience fee imposed on each electronic filing transaction to pay for computer system usage and electronic service (if applicable).

The amount is automatically added and displayed prior to financial commitment by the filer. The amount will also display on the eFile receipt.

The convenience fee is waived for CLSP and granted 298 Petition filings. The convenience fee is non-refundable once the electronic filing transaction has been submitted, and will not be refunded in the event of rejection by the Clerk.

Can you imagine having to fork over an additional $3 ($4 if the $1 minimum Electronic Payment fee is also added in) every time you need to file anything? That makes the present efiling system wholly indefensible.

Ah, the naive may say, but progress must come at a price. It will cost money to update and automate and implement any efiling system.

Here's a newsflash: The Clerk already receives money for automation. Lawyers, look at any receipt in any file for an Appearance or Complaint in any of your files. You will see that the receipts show separate charges for both an "automation" fee and a "document storage" fee.

The document storage fee is specifically authorized by §27.3c of the Clerks of Court Act, 705 ILCS 105/27.3c, and there can be no doubt that this fee is meant to defray the cost of conversion to electronic record storage -- you know, the digital files where efilings go. Section 27.3c(a) specifically provides, in pertinent part, "The expense of establishing and maintaining a document storage system in the offices of the circuit court clerks in the several counties of this State shall be borne by the county. To defray the expense in any county that elects to establish a document storage system and convert the records of the circuit court clerk to electronic or micrographic storage, the county board may require the clerk of the circuit court in its county to collect a court document fee of not less than $1 nor more than $15, to be charged and collected by the clerk of the court. The fee shall be paid at the time of filing the first pleading, paper, or other appearance filed by each party in all civil cases."

And the separate "automation" fee is authorized by §27.3a of the Clerk of Courts Act, 705 ILCS 105/27.3a. Section 27.3a states, in pertinent part, "The expense of establishing and maintaining automated record keeping systems in the offices of the clerks of the circuit court shall be borne by the county. To defray such expense in any county having established such an automated system or which elects to establish such a system, the county board may require the clerk of the circuit court in their county to charge and collect a court automation fee of not less than $1 nor more than $15 to be charged and collected by the clerk of the court. Such fee shall be paid at the time of filing the first pleading, paper or other appearance filed by each party in all civil cases...."

I may have missed a fee or two, but every party is already paying at least $30 in every case to establish this new efiling Nirvana. So why should we ask our clients to pay more? How can we justify this?

It is significant to note that U.S. Courts, the vendor with whom the Clerk of the Circuit Court is working in setting up this efiling regime, advertises:

E-Filing is the center of court technology for the 21st century. Without e-filing, a court system falls short of the expectations of today's practicing bar. More importantly, it fails to capitalize on the many benefits of modern electronic technology: paper management, increased efficiency of workflow, improved use of manpower (no double entry, fewer documents to handle, fewer counter and telephone inquiries), and lower costs associated with notifications (postage, paper and manpower).

Efiling should save money: Automated filing should mean no more (or at least substantially fewer) clerks stamping pages and operating cash registers -- fewer salaries and pensions -- and no more (or far fewer) clerks with giant stacks of paper sitting on their desks, waiting to be filed.

Using an efiling system should save the county money. Charging more money, therefore, to use efiling makes about as much sense as allowing banks to charge more money to use ATMs than for presenting checks at the counter. Yes, I know. Banks get away with it. They shouldn't. But, regardless, the robber-baron business practices of our banks should not provide the template or inspiration for the provision of government services.

Kalinsky's story today quotes Clerk Brown's spokesperson as saying that "Brown would consider adjusting the fee structure if the Supreme Court mandates e-filing."

That's not good enough. Not nearly good enough.

The Supreme Court, we are told, wants efiling. That's fine. But PACER should be the standard, not the eventual ideal. It is a starting point, not an ultimate goal. The present efiling regime promises nothing like PACER at outrageous cost. I hope the Circuit Court and the Supreme Court (and the bar associations who may consider the current proposal) will just say no to mandatory efiling in Cook County unless and until it equals or exceeds the quality offered by PACER.

Updated 2/26/14 to incorporate reader-provided corrections.