Hold: Illinois courts remain a problem

Michael P. Tremoglie Jul. 20, 2011, 7:50am

The litigious nature of the state of Illinois is such that one could rightfully ask, "What would Abraham Lincoln say?" Certain jurisdictions in the state have been described by tort reformers as "judicial hellholes."
But what exactly is a "judicial hellhole" and would Abraham Lincoln disapprove of them?"
According Darren McKinney, spokesman for the American Tort Reform Association (ATRA), judicial hellholes are jurisdictions where judges consistently make plaintiff friendly rulings. They systematically apply laws and court procedures in an unfair and unjust manner, generally to the detriment of defendants.
For example, McKinney said, a defendant cannot get a "fair shake" because a judge will admit the testimony of a plaintiff's expert witness and deny contrary evidence from a defendant's expert witness. This is unjust.
ATRA has established a ranking of jurisdictions earning the hellhole appellation. ATRA's latest Judicial Hellhole report cited the Illinois counties most deserving of the title as: Cook, Madison and St. Clair.
They noted that a Cook county judge declared unconstitutional a law passed by the state legislature that limited subjective pain and suffering
damages in medical liability cases.
The Illinois civil justice system was assessed by the Illinois Civil Justice League (ICJL). Their study noted that Cook, in which the city of Chicago is located, represented 44 percent of the state's population and only 46.6 percent of the state's major civil litigation in 1994. By 2004 Cook contained 43 percent of the state's population, but "a staggering 63.6 percent of the litigation."
The report also noted that the "per capita separation between Cook County and the rest of Illinois in 1994 equaled only 0.4 major civil lawsuits per thousand residents." But by 2004 this changed to nearly 2.5 lawsuits per thousand residents. This was a "580 percent widening of the venue imbalance."

Also, according to the report, major venue imbalance exists among the case filings of the First and Fifth Appellate Districts and the Second, Third and Fourth Appellate Districts. The inequality is so prominent that the Cook and Southern Illinois levels are more than twice as great as the rest of Illinois.

The discrepancy between Cook and counties outside of Cook are so disproportionate, that in order to rectify, for example, the 2003 difference, 7,560 major civil cases from Cook County would have to be removed and these redistributed among the remaining 95 other counties.

As incredible as this may seem, Cook was not the most litigious county in Illinois. Madison County is known as the asbestos litigation capital of the United States. It is a most hospitable place to file major class actions according to ATRA.

The ICJL developed a litigation index. This is the amount of lawsuits per thousand residents in a county. Madison County was number one with a score of 8.077. This is an amount nearly double that of Cook County which had an index of 4.338. It was more than four times higher than the average of the 101-county area outside of Cook County.

But Jerry Latherow, who is the president of the Illinois Trial Lawyers Association (ITLA), says this is much ado about nothing. He takes exception to the claim that Madison County or any other county is a "judicial hellhole." He cited, as an example, medical malpractice cases.

"There have been only two verdicts for over a million dollars for medical malpractice in a dozen years in Madison County," Mr. Latherow said.

When asked about other civil actions, asbestos suits for example, he acknowledged that as far as these cases are concerned, a lot of them are filed in Madison County. But he said that they are specialized kinds of cases.

Whether one sides with McKinney or Latherow, there is no denying that Cook, Madison and St. Clair counties are home to many of the leading trial lawyers in Illinois.

The National Trial Lawyers Association (NTLA) lists the leading trial lawyers in America. The leading Illinois trial lawyer contingent is populated by attorneys in Chicago such as David Axelrod, Joseph Balestri, Philip Bareck, Heather Begley, Robert Bingle, and Melvin L. Brooks among others.

Madison County is also well represented by John J. Hopkins, Edwardsville; John Dale Stobbs, Alton; John Simmons of East Alton; and Bradley Lakin of Wood River.

Another Illinois county that has appeared on ATRA's radar is St. Clair. The NTLA list has more than a few St. Clair county trial lawyers. Among them are Christopher Cueto, J. Michael Weilmuenster and George Ripplinger all of whom practice in Belleville and Judy Cates of Swansea.

The ATRA report notes that St. Clair County raises the angst among civil defendants. It is viewed by trial lawyers across America as a prime jurisdiction to file. They said there were residents of many states including Alaska, Colorado, Delaware, Georgia, Iowa, Maryland, Massachusetts, Nevada, New Jersey, Oklahoma, Ohio, Pennsylvania, Tennessee, Texas, and West Virginia who chose in 2010 to file their claims in St. Clair that "a drug maker and pharmacy chain did not sufficiently warn them that an antibiotic could lead to a higher risk of tendon injuries."
Also, according to the ATRA's Judicial Hellhole Watch List, St. Clair County Circuit Judge Michael O'Malley, once presided over a case targeting a particular pharmaceutical company. After retiring from the bench he joined a personal injury law firm that solicits cases as the champion for "victims of corporate abuse, neglect and greed."
Shortly after retirement, O'Malley filed claims as the lead attorney against the same drug maker in both St. Clair and Madison counties. While there may be some question of a conflict of interests, the former judge obviously doe not see it this way. But ATRA feels the role-switch as inherently a conflict of interest. As far as they are concerned it is so obvious, that it "would make for side-splitting backwoods satire were the sobering stakes not so high for the defendant."
The disconcerting nature, in ATRA's opinion, of a St. Clair jurist hanging up the robes to play advocate for plaintiffs and profit from it, is compounded by the increase in asbestos claims in the county. The cases are approaching an all time high this year according to their data.
While it does not approach the Madison County volume, "lawyers had filed 53 new asbestos claims in St. Clair County as of December 1, 2010, shattering the previous yearly record of 25 set back in 2006."
There is also the matter of Thomas Lakin. He was formerly a major Metro-East trial lawyer and the founder of the eponymical law firm. St. Clair County judges have not addressed a civil suit against former him. He pleaded guilty to drug charges and was sentenced to six years in prison in October 2008. Sexual assault charges against Lakin were dropped as part of a plea bargain arrangement. But "a civil suit against him for sexual abuse and conspiracy" has remained in abeyance pending the criminal charges which were filed in 2007.
But trial lawyers think the reason for citing these instances is pure greed. Joseph Power, of Power, Rogers and Smith, is one of the leading trial lawyers in Chicago. He has been described as the "Darth Vader to the insurance companies. He thinks that the criticisms leveled are part of a misinformation campaign by big businesses.

He believes, like Latherow, that that it is merely propaganda, an attempt by big business to "taint the jury pool." He believes that businesses are in the business of avoiding to pay for misconduct. He notes that in his specialty of malpractice litigation there has been a reduction in lawsuits.

"The idea of Cook County being a judicial hellhole in absurd," Power said. "Lawsuits are down 40 percent from 1,499 in 2003 to 836 in 2010. Meanwhile a malpractice insurance firm has recently reaped the greatest profit in history."

Power admits that he thinks there is an element of tort reform that was needed. He and trial lawyers concurred with implementing some necessary reforms in malpractice cases.

Bu he does not think there is a problem. He thinks the criticism is "driven by commercial interests."
There is a reason major corporations are giving political donations," he said. "But the fact is that 75% of lawsuits are lost by the plaintiff, 50% of all personal injury cases are lost by plaintiff. What do they want only ten percent before they are satisfied?"
What Power said about some improvements in the litigation climate was corroborated by ATRA. Their report said that there has been some improvement in the litigation environment in Madison County. He notes, for example, that there have been some changes made by judges who have implemented procedures to prevent judge "shopping."
The enactment of the Class Action Fairness Act in 2005 also curbed the number of class actions filed in state courts. An asbestos judge in Madison County in said he would get rid of cases that didn't belong in his court. Both of these factors have helped to see a reduction of filings.
But the pendulum is starting to swing back again as asbestos cases from plaintiffs from all over the country are on the rise again in Madison County. There is a new asbestos judge who is getting ready to issue a standing order on how she will manage the huge docket.
Another jurisdiction that ATRA considers a problem is McLean County. It has an active asbestos docket and is known for high verdicts

Are Cook, Madison, St Clair and McClean counties bastions of justice for the little guy? Are they places where they can obtain justice from big powerful corporations as trial lawyers maintain?

Or are they judicial hellholes, as ATRA maintains, where the legal machinery is geared towards monumental verdicts against large corporations - not a reflection of their guilt or innocence - but rather as a way for jurors to feel that they are obtaining some modicum of revenge for greedy and evil corporations, and meanwhile creating enormous profits for trial lawyers.

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