Coronavirus impacts even the taking of depositions in Illinois

Before the world ended, Illinois Supreme Court Rule 206(h) provided:

Remote Electronic Means Depositions. Any party may take a deposition by telephone, videoconference, or other remote electronic means by stating in the notice the specific electronic means to be used for the deposition, subject to the right to object. For the purposes of Rule 203, Rule 205, and this rule, such a deposition is deemed taken at the place where the deponent is to answer questions. Except as otherwise provided in this paragraph (h), the rules governing the practice, procedures and use of depositions shall apply to remote electronic means depositions.

(1) The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties.

(2) Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition.

(3) Nothing in this paragraph (h) shall prohibit any party from being with the deponent during the deposition, at that party’s expense; provided, however, that a party attending a deposition shall give written notice of that party’s intention to appear at the deposition to all other parties within a reasonable time prior to the deposition.

(4) The party at whose instance the remote electronic means deposition is taken shall pay all costs of the remote electronic means deposition, unless otherwise agreed by the parties.

Now, at the end of the world, any depositions will be remote depositions.

And the old rule runs afoul of new social distancing requirements -- requiring the court reporter to be with the witness, for example.

So, yesterday, the Illinois Supreme Court issued a new, temporary Rule 206(h) (new language indicated by underscore, deleted language indicated by strikeout):

Remote Electronic Means Depositions. Any party may take a deposition by telephone, videoconference, or other remote electronic means by stating in the notice the specific electronic means to be used for the deposition, subject to the right to object. For the purposes of Rule 203, Rule 205, and this rule, such a deposition is deemed taken at the place where the deponent is to answer questions. Except as otherwise provided in this paragraph (h), the rules governing the practice, procedures and use of depositions shall apply to remote electronic means depositions.

(1) Reserved. The deponent shall be in the presence of the officer administering the oath and recording the deposition, unless otherwise agreed by the parties.

(2) Any exhibits or other demonstrative evidence to be presented to the deponent by any party at the deposition shall be provided to the officer administering the oath and all other parties within a reasonable period of time prior to the deposition, unless the deposition participants are able to view the exhibits in real time during the deposition.

(3) Reserved. Nothing in this paragraph (h) shall prohibit any party from being with the deponent during the deposition, at that party’s expense; provided, however, that a party attending a deposition shall give written notice of that party’s intention to appear at the deposition to all other parties within a reasonable time prior to the deposition.

(4)The party at whose instance the remote electronic means deposition is taken shall pay all costs of the remote electronic means deposition, unless otherwise agreed by the parties.

(5) Time spent at a remote electronic means deposition in addressing necessary technology issues shall not count against the time limit for the deposition set by Rule 206(d), by stipulation, or by court order.

(6) No recording of a remote electronic means deposition shall be made other than the recording disclosed in the notice of deposition.

Even lawyers are beset by technical difficulties (actually I think we may be more prone to these than most) -- so the new rule wisely provides that technical difficulties will not count against the three-hour deposition time ordinarily permitted for depositions.

Also note the order stresses that no recording other than that provided for by notice will be permitted -- although you have to wonder who is going to take a video deposition of a picture on a laptop in the first place....

We are now all involuntary experts in Zoom -- and recordings can be made of Zoom meetings.

But not legally.

Court proceedings are now taking place every day on Zoom -- and the Circuit Court of Cook County has made it abundantly clear that "any video recording, audio recording, photographing and/or reproducing of the livestream is strictly prohibited. The recording, publishing, broadcasting or other copying or transmission of courtroom proceedings by video, audio, still photography or any other means is strictly prohibited by Illinois Supreme Court Rule 68(A)(8) and is subject to the penalties for contempt of court."

In other words, don't do it.

And, while we're on the subject of don't do it, the Supreme Court issued a comment with the new, temporary rule 206(h):

Where a deponent testifies from a remote location and no neutral representative or representative of an adverse party is present in the room with the testifying deponent, care must be taken to ensure the integrity of the examination. The testifying deponent may be examined regarding the identity of all persons in the room during the testimony. Where possible, all persons in the room during the testimony should separately participate in the videoconference. In furtherance of their obligations under Illinois Rules of Professional Conduct 3.3 (Candor Toward the Tribunal), 3.4 (Fairness to Opposing Party and Counsel), and 8.4(d) (Misconduct), counsel representing a deponent should instruct the deponent that (a) he or she may not communicate with anyone during the examination other than the examining attorney or the court reporter and (b)he or she may not consult any written, printed, or electronic information during the examination other than information provided by the examining attorney. Unrepresented deponents may be similarly instructed by counsel for any party.

An attorney who produces a client or other witness for deposition without properly admonishing the witness along these lines may wind up with an ARDC beef if it develops that the witness had a coach or some other undisclosed crutch off camera.

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 a 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....

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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 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.

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.

Access to justice must involve access to lawyers

Equal access to justice is on the minds of so many in the legal profession these days. It was the theme of the recent Illinois Justice Foundation Spring Reception; a page on the Legal Assistance Foundation website proclaims, "Equal Justice Starts Here."

We are all agreed on the destination; we are, however, uncertain how to get there. The Illinois Supreme Court has established a Commission on Access to Justice to help us chart the way.

Not so long ago, the vision was much clearer: Lawyers would lead the way to equal justice. We are just past the 50th anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963), when the U.S. Supreme Court mandated that states must provide indigent defendants in criminal cases with lawyers at state expense. Equal access to justice was equivalent to equal access to lawyers.

Today, though, lawyers are seen as more a problem than a solution. It may not be polite to say so directly, but lawyers are considered too darned expensive. It's not just the indigent who can not afford lawyers; quality legal representation seems beyond the reach of the not-so-poor, even the middle class. Small businesses increasingly skimp on legal representation. Some of them may not suffer for it. But only some.

Lawyers are increasingly urged to provide pro-bono representation. Illinois lawyers are required to report how many hours they donate each year; New York lawyers are now required to donate 50 hours of pro-bono time in order to keep their licenses. This approach might provide an effective stopgap if there were a critical shortage of lawyers, while law schools churned out new recruits.

But the unavailability of legal representation for so many is not due to any shortage of lawyers; on the contrary, newly minted lawyers are flipping burgers and folding pants. Law schools are being sued (so far without much success) for providing inflated statistics about employment prospects. Meanwhile, older lawyers are getting jettisoned from firms; many are abandoning the profession.

Some blame the disconnect between persons in need of legal services and legal service providers who can not find work on law schools, others on outmoded business methods generally (and the hourly fee in particular).

These surely play a role, but I believe there's a third, greater culprit: Discovery.

Discovery is the wedge that is dividing BIG LAW from the rest of us (call us little law if you like).

John Flynn Rooney reported in Friday's Chicago Daily Law Bulletin that McDermott, Will & Emery LLP

has expanded its discovery center operations to house up to 125 project attorneys working out of three locations.

That includes 90 in Chicago, up from 60; a new document review facility for up to 25 lawyers in Menlo Park, Calif.; and space for 10 lawyers at a Washington, D.C., facility.

The discovery center attorneys review and store electronic information that is used before and during litigation. The firm can have up to 175 lawyers reviewing documents simultaneously.

The staff attorneys are permanent firm employees who are not on a partnership track and are paid an annual salary, [firm co-chairman Jeffrey E.] Stone said.

According to the Law Bulletin article, a team of 20 technology professionals backs up the McDermott attorneys, and the firm has invested in new document-reviewing technologies, particularly in its Silicon Valley location.

Stories like this tell me that it is time for those of us in little law to recognize that our colleagues in BIG LAW are evolving into a different profession. We should wish them well, but let them go their own way; we must no longer ape them.

And, make no mistake, we in little law have for too long tried to imitate our BIG LAW brothers and sisters.

I remember, as a baby lawyer a generation ago, how excited my elders were when new word processing technology permitted us to propound form interrogatories, just like the big firms. The big firms have aggressively pursued full discovery for decades. Once they could, smaller firms followed suit: Discovery has gone from an option to a necessity in the course of my career. I tried a case 18 years ago in which next to no discovery had been taken. The insurer pulled the file from the first defense firm it had retained (even back then there were mutterings that failing to pursue complete discovery was near-malpractice at least) and my initial task was to frantically beg and plead the court to open up discovery. I tried groveling, even, but it was no use. I was forced out to trial.

Surprisingly, perhaps, the world did not end: The weekend before the trial I went out to inspect the locus in quo with my 10-year old son. We took some pictures. I came up with a strategy and it actually worked (I got a defense verdict).

I don't think this sort of thing happens very often these days: Motion Judges in the Law Division today conduct case management conferences every 30 to 60 days, or even more frequently, on occasion, when an attorney fails to complete discovery tasks as expected. Discovery is done or it is waived -- with a written order documenting the choice. If something bad happens down the road, no one wants to have a forfeiture order proving that he or she didn't do all that was possible.

All this discovery costs money. Insurance companies may complain about the expenses, but it's the uninsured litigants who crumble under the costs.

Those of us left behind in little law are going to have to find some way to help clients resolve disputes without automatically incurring the expenses of discovery. Let BIG LAW build 'discovery centers.' We should work on early dispute resolutions, using mediation or any other tools we can develop. Realistically, if we hope to provide equal justice for all, realistic access to lawyers in a streamlined, cost-effective litigation process will have to be part of the overall solution.

Self-executing order kills chances to vacate arbitration award

Supreme Court Rule 91(b) provides:

All parties to the arbitration hearing must participate in the hearing in good faith and in a meaningful manner. If a panel of arbitrators unanimously finds that a party has failed to participate in the hearing in good faith and in a meaningful manner, the panel's finding and factual basis therefor shall be stated on the award. Such award shall be prima facie evidence that the party failed to participate in the arbitration hearing in good faith and in a meaningful manner and a court, when presented with a petition for sanctions or remedy therefor, may order sanctions as provided in Rule 219(c), including, but not limited to, an order debarring that party from rejecting the award, and costs and attorney fees incurred for the arbitration hearing and in the prosecution of the petition for sanctions, against that party.

I have served as an arbitrator in the Cook County Mandatory Court Annexed Arbitration program since it was instituted. On several occasions prior to the 1993 addition of Rule 91(b), I personally observed counsel come to hearings armed with only a newspaper, sometimes working the crossword puzzle while the other side put on a case. This was -- under the original arbitration rules -- permitted: The right to reject the inevitable adverse award was preserved. Nor was my experience unusual, as the comments to Rule 91(b) make clear: "Prior to the adoption of these sanctions, there were complaints by arbitrators that some parties and lawyers would merely attend but refuse to participate in arbitration. This paragraph was adopted to discourage such misconduct."

But not only does the rule apply to how a party conducts itself at the arbitration hearing itself, the rule has been interpreted in such a way as to include a party's prearbitration conduct within the ambit of the rule.

Campuzano v. Peritz, 2007 WL 2821967 (Ill.App. 1st Dist. 9/28/07), is the latest case to find that failure to comply with a self-executing discovery order is conclusive evidence of bad faith for purposes of an arbitration hearing.

Campuzano involved an auto accident: Lyda Campuzano said she was injured on account of defendants' negligence. Plaintiff served Interrogatories and notices for the defendants' depositions in due course -- but these were apparently ignored. Plaintiff filed a motion to compel. The court entered an order requiring defendants to answer the Interrogatories by November 8, 2004 and to appear for their depositions by November 15. The order specifically provided that "failure to comply with discovery would result in an order barring defendants from testifying or presenting evidence at the arbitration and at trial." (Slip. op. at 2.) (It is in this way that the order was 'self-executing': The specified sanction would follow automatically if compliance did not occur.)

Spurred thus to action, defendants complied... in part. Howard Peritz, the driver of the car at the time of the collision with Ms. Campuzano's vehicle, appeared for deposition on November 11. Revelie Peritz never appeared; neither Howard nor Revelie ever answered the Interrogatories.

The court-ordered discovery cut-off slipped by on November 29, 2004. The case was thereafter set for arbitration on April 5, 2005. No effort was made to vacate the discovery order during that time.

At the arbitration, plaintiff advised the panel about the unfulfilled discovery order; it was duly noted in the award form completed by the arbitrators. Defendants admitted negligence at the hearing, but apparently participated to the limited extent that they could under the order. However, the Appellate Court said the arbitrators "concluded that all parties participated in the arbitration in good faith." (Slip op. at p. 2.) Nevertheless (and to no one's surprise) the arbitrators entered an award in favor of plaintiff and against Howard Peritz.

When the case came back to the Circuit Court, defendants finally moved "to vacate the discovery order sanctioning their failure to comply with plaintiff's discovery requests." The opinion does not indicate whether compliance with the written discovery was tendered with the motion; my impression is that it was not. "Plaintiff responded by arguing the sanction was appropriate and moving to bar defendants' rejection of the arbitration award under Rule 91(b)." (Slip op. at p. 2.) The trial court denied defendants' motion, granted plaintiff's motion and entered judgment on the arbitration award.

Both the Appellate Court's majority opinion, written by Justice Robert Cahill, and the dissent, authored by Justice Robert E. Gordon, analyze the case in terms of good faith participation in the arbitration process under Supreme Court Rule 91(b).

The majority explains that this rule "requires that parties participate in an arbitration hearing in good faith by subjecting the case to the type of adversarial testing that would be expected at a trial." (Slip op. at p. 3, citing Walker v. Lewis, 352 Ill.App.3d 952, 956, 817 N.E.2d 928 (1st Dist. 2004)). In his dissent, Justice Gordon did not disagree with this fundamental proposition: "The point of Rule 91(b) that the majority is greatly concerned with, and rightfully so, is to 'prevent the abuse of the arbitration process and to uphold the integrity of the arbitration process.'" (Slip op. at p. 12, quoting State Farm Insurance Co. v. Kazakova, 299 Ill.App.3d 1028, 1033, 702 N.E.2d 254 (1st Dist. 1998)).

But, Justice Gordon contends, "The facts in this case do not indicate that defendant Howard's conduct in not answering plaintiff's written interrogatories was an abuse of the arbitration process, or that it affected the integrity of that process." (Slip op. at p. 12.) I suppose one must agree or disagree with this statement based on what is seen as the arbitration "process."

If arbitration "process" means the same as arbitration hearing, the dissent has a point: And, consistent with the original impetus of Rule 91(b), the Supreme Court uses the word "hearing" repeatedly in the text of the actual rule -- twice in that first sentence of Rule 91(b) alone. In Campuzano, therefore, while the defendants seem to have been somewhat lackadaisical in their approach to court-ordered discovery before the hearing, that does not mean that they were not, at the arbitration hearing itself, models of decorum and professional preparation.

In Campuzano, it seems apparent that all sides, including the trial court, saw plaintiff's attempt to debar the defendants' rejection of the award as an attempt to secure a finding that defendants had acted in bad faith at the hearing. Thus, defendants argued that their apparent good faith participation at the arbitration hearing should have preserved their right to reject the award. In support of their position, defendants cited cases such as Ruback v. Doss, 347 Ill. App. 3d 808, 815, 807 N.E.2d 1019 (1st Dist. 2004).

The majority found these citations of limited assistance. In Ruback, for example, the defense had argued that plaintiff had elicited testimony in contravention of the Dead Man's Act, 735 ILCS 5/8-201 -- and won the maximum possible award from the arbitrators in the process. The defense persuaded the trial court of this position without a transcript of the arbitration hearing itself.

The focus, in Campuzano and the cases on which the majority relies, on whether the defendants did or not participate in good faith at the arbitration is necessitated by the rule itself. Thus, the majority concludes, "A party does not participate in an arbitration in good faith and in a meaningful manner when he fails to comply with prearbitration discovery." (Slip op. at p. 6.)

In Campuzano, the defendants admitted negligence for purposes of the arbitration hearing. The dissent notes that, in general, "discovery as to a defendant is not necessary for arbitration or trial by the plaintiff when negligence is admitted." (Slip op. at p. 12.) The majority did not entirely disagree with this assertion, but felt it was irrelevant (slip op. at p. 9): "The dissent’s argument that prehearing discovery is less important when liability is admitted may well be valid. But the proper forum for that argument is the courtroom of the judge about to enter the order. There are procedural steps available to an attorney aggrieved by the entry of a nonappealable discovery order."

The question in my mind is whether arbitrators hearing cases after Campuzano or Lopez v. Miller, 363 Ill.App.3d 773, 844 N.E.2d 1017 (1st Dist. 2006), are now expected to find that a party has acted in bad faith whenever a party calls to the panel's attention a failure to comply with a discovery order, particularly a self-executing discovery order like that at issue in Campuzano.

Arbitrators in Illinois' mandatory court-annexed arbitration system have very limited powers as set out at Supreme Court Rule 90. In Cook County, arbitrators have been asked to submit to a couple of training sessions in recent years; one of the things that arbitrators have been instructed to do at those sessions is to remember to record, on the award form, those discovery issues that the parties call to their attention at a hearing. No particular instruction has been offered on how or whether the arbitrators should take this default into account in discharging their obligation to determine whether the parties acted in good faith at the hearing; the general instruction has been to record the existence of the order and let the court sort it out in post-arbitration motions. Perhaps, in light of Campuzano, these instructions will need to be revised.